7870 Federal Register / Vol. 82, No.

13 / Monday, January 23, 2017 / Notices

SUMMARY: In accordance with the Signed at Washington, DC, on January 13, any organization the submitter
provisions of the Federal Advisory 2017. represents. The Office will post all
Committee Act (FACA), and after Jordan Barab, comments publicly in the form that they
consultation with the General Services Acting Assistant Secretary of Labor for are received. If electronic submission of
Administration, the Secretary of Labor Occupational Safety and Health. comments is not feasible due to lack of
is renewing the charter for the Maritime [FR Doc. 2017–01407 Filed 1–19–17; 8:45 am] access to a computer and/or the
Advisory Committee for Occupational BILLING CODE 4510–26–P Internet, please contact the Office, using
Safety and Health. The Committee will the contact information below, for
better enable OSHA to perform its special instructions.
and Health Act (the OSH Act) of 1970. Kimberley Isbell, Senior Counsel for
U.S. Copyright Office Policy and International Affairs, by
The Committee is diverse and balanced,
both in terms of segments of the [Docket No. 2017–2] email at kisb@loc.gov or by telephone at
maritime industry represented (e.g., 202–707–8350; or Maria Strong, Deputy
Study on the Moral Rights of Director for Policy and International
shipyard employment, longshoring, and
Attribution and Integrity Affairs, by email at mstrong@loc.gov or
marine terminal industries), and in the
by telephone at 202–707–8350.
views and interests represented by the AGENCY: U.S. Copyright Office, Library SUPPLEMENTARY INFORMATION:
members. of Congress.
ACTION: Notice of inquiry. I. Background
Amy Wangdahl, Director, Office of The term ‘‘moral rights’’ is taken from
SUMMARY: The United States Copyright the French phrase droit moral, and
Maritime and Agriculture, Directorate of Office is undertaking a public study to
Standards and Guidance, U.S. generally refers to certain non-economic
assess the current state of U.S. law rights that are considered personal to an
Department of Labor, Occupational recognizing and protecting moral rights
Safety and Health Administration, author.1 Chief among these are the right
for authors, specifically the rights of of an author to be credited as the author
Room N–3609, 200 Constitution Avenue attribution and integrity. As part of this of his or her work (the right of
NW., Washington, DC 20210; telephone: study, the Office will review existing attribution), and the right of an author
(202) 693–2066. law on the moral rights of attribution to prevent prejudicial distortions of the
SUPPLEMENTARY INFORMATION: The and integrity, including provisions work (the right of integrity). These rights
Committee will advise OSHA on matters found in title 17 of the U.S. Code as well have a long history in international
as other federal and state laws, and copyright law, dating back to the turn of
relevant to the safety and health of
whether any additional protection is the 20th century when several European
employees in the maritime industry.
advisable in this area. To support this countries included provisions on moral
This includes advice on maritime issues
effort and provide thorough assistance rights in their copyright laws.2 A
that will result in more effective to Congress, the Office is seeking public
enforcement, training, and outreach provision on moral rights was first
input on a number of questions. adopted at the international level
programs, and streamlined regulatory
DATES: Written comments must be through the Berne Convention for the
efforts. The maritime industry includes
received no later than 11:59 p.m. Protection of Literary and Artistic
shipyard employment, longshoring, Eastern Time on March 9, 2017. Written
marine terminal, and other related Works (‘‘Berne Convention’’) during its
reply comments must be received no Rome revision in 1928.3 The current
industries, e.g., commercial fishing and later than 11:59 p.m. Eastern Time on text of article 6bis(1) of the Berne
shipbreaking. The Committee will April 24, 2017. The Office may Convention states: ‘‘Independently of
function solely as an advisory body in announce one or more public meetings, the author’s economic rights, and even
compliance with the provisions of to take place after written comments are after the transfer of the said rights, the
FACA and OSHA’s regulations covering received, by separate notice in the author shall have the right to claim
advisory committees (29 CFR part 1912). future. authorship of the work and to object to
Authority and Signature ADDRESSES: For reasons of government any distortion, mutilation or other
efficiency, the Copyright Office is using modification of, or other derogatory
Jordan Barab, Acting Assistant the regulations.gov system for the action in relation to, the said work,
Secretary of Labor for Occupational submission and posting of public which would be prejudicial to his honor
Safety and Health, U.S. Department of comments in this proceeding. All or reputation.’’ 4
Labor, 200 Constitution Avenue NW., comments must be submitted In contrast to the early adoption of
Washington, DC 20210, authorized the electronically. Specific instructions for strong moral rights protections in
preparation of this notice pursuant to submitting comments will be posted on
1 In this Notice, we use the general term ‘‘author’’
Sections 6(b)(1), and 7(b) of the the Copyright Office Web site at https://
to include all creators, including visual artists and
Occupational Safety and Health Act of www.copyright.gov/policy/moralrights/ performers.
1970 (29 U.S.C. 655(b)(1), 656(b)), the comment-submission/. To meet 2 See Sam Ricketson & Jane C. Ginsburg,

Federal Advisory Committee Act (5 accessibility standards, all comments International Copyright and Neighboring Rights:
must be provided in a single file not to The Berne Convention and Beyond ¶¶ 10.03–.04, at
U.S.C. App. 2), Section 41 of the 587–89 (2d ed. 2006).
exceed six megabytes (MB) in one of the
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Longshore and Harbor Workers’ 3 See Miha ´ ly Ficsor, World Intellectual Property
Compensation Act (33 U.S.C. 941), following formats: Portable Document Organization, Guide to the Copyright and Related
Secretary of Labor’s Order 1–2012 (77 File (PDF) format containing searchable, Rights Treaties Administered by WIPO and
FR 3912, Jan. 25, 2012), and 29 CFR part accessible text (not an image); Microsoft Glossary of Copyright and Related Rights Terms ¶
Word; WordPerfect; Rich Text Format BC-6bis, at 44 (2003).
1912. 4 Berne Convention for the Protection of Literary
(RTF); or ASCII text file format (not a and Artistic Works art. 6bis(1), Sept. 9, 1886, as
scanned document). All comments must revised July 24, 1971, and as amended Sept. 28,
include the name of the submitter and 1979, S. Treaty Doc. No. 99–27 (1986).

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Europe, the United States’ experience A. Moral Rights in the United States Both the House and Senate Judiciary
with the concept of moral rights is more Prior to Implementation of the Berne Committees accepted this conclusion,18
recent. The United States did not adopt Convention in 1989 finding that U.S. law met the
the Berne Convention right away, only requirements outlined in the Berne
joining the Convention in 1989.5 At that In the late 1950s, the Copyright Office Convention’s article 6bis based on the
time, the United States elected not to and Congress reviewed the issue of existing patchwork of laws in the
adopt broad moral rights provisions in moral rights as part of the larger, United States, including:
its copyright law, but instead relied on comprehensive review of the copyright • Section 43(a) of the Lanham Act
a combination of various state and laws leading to a general revision of the relating to false designations of origin
federal statutes to comply with its Berne 1909 Copyright Act.12 In support of the and false descriptions, which could be
obligations.6 review, William Strauss completed a applied in some instances to attribution
study for the Office entitled ‘‘The Moral of copyright-protected work.19
In July 2014, the Subcommittee on Right of the Author’’ in 1959.13 The • The Copyright Act’s provisions
Courts, Intellectual Property, and the report found that U.S. common law regarding protection of an author’s
Internet of the House Judiciary principles, such as those governing tort exclusive rights in derivatives of his or
Committee held a hearing that focused and contract actions, ‘‘afford an her works; 20 limits on a mechanical
in part on moral rights for authors in the adequate basis for protection of [moral] licensee’s rights to arrange an author’s
United States as part of its broader rights’’ and can provide the same musical composition; 21 and termination
review of the nation’s copyright laws.7 protection given abroad under the of transfers and licenses.22
At that hearing, the Chairman of the doctrine of moral rights.14 • State and local laws relating to
House Judiciary Committee, publicity, contractual violations, fraud
Later, Congress considered the
Representative Bob Goodlatte, noted and misrepresentation, unfair
specific question of ‘‘whether the
that ‘‘we should consider whether competition, defamation, and invasion
current law of the United States is
current law is sufficient to satisfy the of privacy.23
sufficient, or whether additional laws
moral rights of our creators or, whether are needed, to satisfy [Berne article B. Subsequent Developments After the
something more explicit is required.’’ 8 6bis’s] requirements.’’ 15 The majority of U.S. Implementation of the Berne
The Ranking Member of the those who testified before Congress Convention
Subcommittee, Representative Jerrold argued against any change to U.S. law Since the United States’
Nadler, also indicated his interest in a concerning an artist’s right to control implementation of the Berne
further evaluation of the status of moral attribution or any alteration to his Convention over 25 years ago, there
rights in the United States, asking ‘‘how creation, stating that current U.S. law have been a number of legal and
our current laws are working and what, was sufficient.16 Indeed, WIPO Director technological developments affecting
if any, changes might be necessary and General Dr. A ´ rpa´d Bogsch explained to the scope and protection of moral rights.
appropriate.’’ 9 Register of Copyrights Congress that the United States did not In 1990, Congress passed the Visual
Maria Pallante recommended further need to make any changes to U.S. law Artists Rights Act (VARA), codified at
study of moral rights in her testimony to meet the obligations of article 6bis.17 section 106A of the Copyright Act, 24
before Congress at the end of the two-
year copyright review hearings 12 As part of the consideration for possible 18 See S. Rep. No. 100–352, at 9–10 (1988); H.R.

process,10 at which time the Ranking accession to the Berne Convention, the general Rep. No. 100–609, at 37–38 (1988); see also S. Exec.
review of the 1909 Act took more than 20 years and Rep. No. 100–17, at 55 (1988) (to accompany S.
Member of the House Judiciary Treaty Doc. No. 99–27 (1986)) (statement of John K.
resulted in the 1976 Copyright Act.
Committee requested that the Office 13 See William Strauss, Study No. 4: The Moral Uilkema on behalf of Am. Bar Ass’n before the S.
undertake this study.11 As part of the Right of the Author (1959), in Staff of S. Comm. on Comm. on Foreign Relations) (‘‘Whether greater or
preparation for this study, the Copyright the Judiciary, 86th Cong., Copyright Law Revision: lesser moral rights per se should be the subject of
Studies Prepared for the Subcomm. on Patents, legislative consideration in the United States is a
Office co-hosted a day-long symposium Trademarks, and Copyrights of the Comm. on the question that is separate and apart from the Berne
on moral rights in April 2016 in order Judiciary, United States Senate: Studies 1–4, at 109 adherence compatibility question.’’).
19 See 15 U.S.C. 1125(a).
to hear views about current issues in (Comm. Print 1960).
14 Strauss at 142. The report rejected the idea of 20 See 17 U.S.C. 106(2).
this area. The Office is now
an ‘‘irreconcilable breach between European and 21 See 17 U.S.C. 115(a)(2).
commencing a formal study on moral American concepts of protection of authors’ 22 See 17 U.S.C. 203.
rights and soliciting public input. personal rights,’’ instead concluding that U.S. and 23 See H.R. Rep. No. 100–609, at 34 (1988).
European courts generally arrived at the same Contract law is particularly important for authors to
5 Berne Convention Implementation Act of 1988, results in upholding the same rights or limitations control aspects of their economic and moral rights.
on those rights, just in different ways. Id. at 141– For example, the collective bargaining agreements
Public Law 100–568, 102 Stat. 2853 (‘‘BCIA’’).
6 See discussion on the BCIA infra notes 15–23
42. that govern the creation of major motion pictures
15 H.R. Rep. No. 100–609, at 33 (1988).
and accompanying text. often contain explicit requirements with regards to
16 See S. Rep. No. 100–352, at 6 (1988); H.R. Rep. attribution for actors, writers, directors, and other
7 See Moral Rights, Termination Rights, Resale
No. 100–609, at 33 (1988). guilds. Many copyright sectors that involve
Royalty, and Copyright Term: Hearing Before the 17 See H.R. Rep. No. 100–609, at 37 (1988); S. Rep. numerous authors and participants in the creative
Subcomm. on Courts, Intellectual Prop., & the
No. 100–352, at 10 (1988); see also Letter from Dr. process, such as filmed entertainment, business and
Internet of the H. Comm. on the Judiciary, 113th ´ rpa´d Bogsch, Dir. Gen., World Intellectual Prop.
A entertainment software, music production, and
Cong. (2014) (‘‘Moral Rights Hearing’’).
Org., to Irwin Karp, Esq. (June 16, 1987), reprinted book publishing, also rely on both employment
8 Moral Rights Hearing at 4.
in Berne Convention Implementation Act of 1987: agreements and the work-for-hire doctrine to
9 Id.
Hearing on H.R. 1623 Before the Subcomm. on determine ownership issues, which in turn may
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10 Register’s Perspective on Copyright Review: include elements related to attribution and
Courts, Civil Liberties & the Admin. of Justice of the
Hearing Before the H. Comm. on the Judiciary, H. Comm. on the Judiciary, 100th Cong. 213 (1987) integrity.
114th Cong. 34–35 (2015) (written statement of (‘‘In my view, it is not necessary for the United 24 Visual Artists Rights Act (VARA) of 1990,
Maria A. Pallante, Register of Copyrights and Dir., States of America to enact statutory provisions on Public Law 101–650, 104 Stat. 5128–29 (codified at
U.S. Copyright Office) (‘‘Register’s Perspective moral rights in order to comply with Article 6bis 17 U.S.C. 106A). In the Report accompanying H.R.
Hearing’’). of the Berne Convention. The requirements under 2690 (Visual Artists Rights Act of 1990), the House
11 Register’s Perspective Hearing at 49 (statement this Article can be fulfilled not only by statutory Judiciary provided background information on the
of Rep. John Conyers, Ranking Member, H. Comm. provisions in a copyright statute but also by Berne Convention and moral rights, noting that the
on the Judiciary). common law and other statutes.’’). Continued

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7872 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Notices

which guarantees to authors of works of rights laws of the United Kingdom and competition law out of the patchwork
‘‘visual arts’’ the right to claim or Canada contained express waiver entirely.36
disclaim authorship in a work and provisions.29
limited rights to prevent distortion, Rights Management Information and
The Supreme Court’s 2003 Decision in Moral Rights for Performers
mutilation, or modification of a work.25
In contrast to how moral rights were Since implementation of the Berne
often adopted elsewhere, with VARA, In 2003, some scholars began to
Convention, the United States has
Congress identified specific instances in question the strength of the U.S.
joined two additional international
which the limited rights could be patchwork of protection as a result of
treaties that address moral rights—the
waived.26 As part of the legislation, the U.S. Supreme Court’s ruling in
WIPO Copyright Treaty (WCT) and the
Congress also directed the Copyright Dastar Corp. v. Twentieth Century Fox
Film Corp. (‘‘Dastar’’), which foreclosed WIPO Performances and Phonograms
Office to conduct studies on the VARA Treaty (WPPT). The WCT incorporates
waiver provision and also on resale some attribution claims under section
43(a) of the Lanham Act.30 The Court the substantive provisions of Berne,
royalties.27 including those of article 6bis.37 Article
In its 1996 report on the waiver unanimously rejected an interpretation
of section 43(a) that would ‘‘require 5 of the WPPT expands the obligations
provision, the Office concluded it could
attribution of uncopyrighted of Contracting Parties to recognize the
not make an accurate assessment of the
materials.’’ 31 Citing VARA, the Court moral rights of attribution and integrity
impact of VARA’s waiver provisions
said that when Congress has wanted to for performers with respect to their live
because artists and art consumers were
provide an attribution right under performances and performances fixed in
generally unaware of moral rights and
copyright law, ‘‘it has done so with phonograms.38 Furthermore, both the
recommended that in order for artists to
take advantage of their legal rights much more specificity than the Lanham WCT and the WPPT include new
under VARA, further education about Act’s ambiguous use of ‘origin.’ ’’ 32 The obligations concerning rights
moral rights in the United States would Court found that ‘‘origin of goods’’ is management information (RMI).39 These
be necessary.28 The Office also made most naturally understood as referring provisions protect new means of
observations about the implementation to the source of a physical product, not identifying and protecting works while
of moral rights obligations in other the person or entity that originated the also helping protect the rights of
countries, finding that, of the laws underlying creative content.33 In a well- attribution and integrity.40
reviewed by the Office, only the moral known sentence, Justice Scalia, writing The United States implemented its
for the Court, stated that permitting a WCT and WPPT obligations via
Congress at the time of the BCIA agreed that section 43(a) claim for such enactment of the 1998 Digital
existing federal and state laws were sufficient to misattribution ‘‘would create a species Millennium Copyright Act (‘‘DMCA’’),41
comply with the Berne Convention requirements, of mutant copyright law that limits the
but that ‘‘adherence to the Berne Convention did
and signed as a contracting party to both
not end the debate about whether the United States public’s ‘federal right to copy and to treaties in 1999, three years before the
should adopt artists’ rights laws, and the use’ expired copyrights.’’ 34
Subcommittee on Courts, Intellectual Property, and Some lower courts have read Dastar 36 See, e.g., Jane C. Ginsburg, Moral Rights in the
the Administration of Justice continued its review as a broad prohibition on applying U.S.: Still in Need of a Guardian Ad Litem, 30
of the issue in [hearings held] in June.’’ H.R. Rep.
No. 101–514, at 8 (1990). Congress cited the federal trademark and unfair Cardozo Arts & Ent. L.J. 73, 83–87 (2012); Justin
competition laws in the realm of Hughes, American Moral Rights and Fixing the
‘‘critical factual and legal differences in the way
Dastar ‘‘Gap,’’ 2007 Utah L. Rev. 659 (2007). At
visual arts and audiovisual works are created and copyright, regardless of whether the least one commenter has argued that not only do
disseminated’’ in support of providing additional copyrighted work remains under the section 43(a)(1)(B) claims survive Dastar, but so do
protections for visual artists. H.R. Rep. No. 101–
514, at 9 (1990). term of protection or has fallen into the some section 43(a)(1)(A) claims. See Hughes at 692–
25 See 17 U.S.C. 101 (definition of a ‘‘work of public domain.35 In contrast, some 95.
37 See WIPO Copyright Treaty art. 1(4), Dec. 20,
visual art’’); § 106A(a)(1) (providing for the right of scholars have argued that the Court did
attribution); § 106A(a)(3) (providing for the right of 1996, 2186 U.N.T.S. 121 (‘‘WCT’’); see also
not write federal trademark and unfair Summary of the WIPO Copyright Treaty (WCT)
integrity). Section 604 of VARA, codified at 17
U.S.C. 113, created special rules for removal of (1996), WIPO, http://www.wipo.int/treaties/en/ip/
works visual art incorporated into buildings. Unlike
29 Waiver of Moral Rights at 183. wct/summary_wct.html.
30 539 38 See WIPO Performances and Phonograms
Berne’s article 6bis, VARA’s protections only apply U.S. 23 (2003). Dastar involved the
to works of visual art. distribution of an edited version of a 1949 broadcast Treaty art. 5(1), Dec. 20, 1996, 2186 U.N.T.S. 203
26 See H.R. Rep. No. 101–514, at 18 (1990). VARA to which Twentieth Century Fox had owned the (‘‘WPPT’’). Like the Berne Convention, the WPPT
permits authors to waive these rights only if copyright but which it failed to renew, placing the provides that the duration of protection shall be at
expressly agreed in a written instrument signed by work in the public domain. Dastar distributed least for the term of economic rights and shall be
the author. See 17 U.S.C. 106A(e). copies of the edited series listing Dastar and its governed by national law. WPPT arts. 5(2)–(3).
27 See Visual Artists Rights Act of 1990, Public subsidiary as the producer and distributor of the 39 See WCT art. 12; WPPT art. 19. WCT article 12

Law 101–650, 608, 104 Stat. 5128, 5132 (1990). The edited work, rather than Fox. Fox sued for reverse and WPPT article 19 define rights management
Copyright Office’s 1992 study concluded there was passing off, claiming Dastar violated section 43(a) information to include identification of the author
insufficient economic and copyright policy of the Lanham Act’s prohibition against false and owner and terms of use of the work or sound
justification to establish droit de suite in the United designation of origin. recording.
31 Id. at 35.
States. See U.S. Copyright Office, Droit De Suite: 40 See J. Carlos Ferna ´ dez-Molina & Eduardo Peis,
32 Id.at 34.
The Artist’s Resale Royalty xv (1992), http:// The Moral Rights of Authors in the Age of Digital
www.copyright.gov/history/droit_de_suite.pdf. In 33 See id. at 31–32. Information, 52 J. Am. Soc’y for Info. Sci. & Tech.
2013, the Copyright Office responded to a 34 Id. at 34 (internal quote marks omitted). The 109, 112 (2001) (explaining how the WIPO Internet
congressional request and issued a second report Supreme Court left open the possibility of a Treaties’ rights management information provisions
which examined the changes in law and practice Lanham Act claim under section 43(a)(1)(B) where, fit within the treaties and also are useful in
regarding resale royalties, in both the United States in advertising for a copied work of authorship, the protecting moral rights).
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and abroad, since the 1992 report. See U.S. copier ‘‘misrepresents the nature, characteristics 41 Digital Millennium Copyright Act (DMCA),
Copyright Office, Resale Royalties: An Updated [or] qualities’’ of the work. Id. at 38. Public Law 105–304, 103 122 Stat. 2860, 2863–76
Analysis (2013), http://www.copyright.gov/docs/ 35 See, e.g., Kehoe Component Sales Inc. v. Best (1998) (codified as amended at 17 U.S.C. 1201–
resaleroyalty/usco-resaleroyalty.pdf. Lighting Prods., Inc., 796 F.3d 576, 587 (6th Cir. 1205). The WIPO Internet Treaties were submitted
28 See U. S. Copyright Office, Waiver of Moral 2015); Gen. Universal Sys., Inc. v. Lee, 379 F.3d to Congress for advice and consent the previous
Rights in Visual Artworks: Final Report of the 131, 148–49 (5th Cir. 2004); Zyla v. Wadsworth, 360 year, and the Senate voted to approve the Treaties
Register of Copyrights xiii, 186 (1996), https:// F.3d 243, 251–52 (1st Cir. 2004); Carroll v. Kahn, shortly before passage of the DMCA. See S. Treaty
www.copyright.gov/reports/waiver-moral-rights- No. 03–CV–0656, 2003 WL 22327299, at *5–6 Doc. No. 105-17 (1997); 105 Cong. Rec. S12,972–73
visual-artworks.pdf (‘‘Waiver of Moral Rights’’). (N.D.N.Y. Oct. 9, 2003). (daily ed. Oct. 21, 1998).

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treaties entered into force.42 Congress courts recognize section 1202 as attribution and the right to object to
added a new chapter 12 to title 17, protecting against any removal of derogatory treatment of a work.51
which contained two new provisions to attribution from works, a minority of The most recent international
implement the treaties—section 1201, courts have limited section 1202 to development on CMI and moral rights
which addresses technological protect only against removal of occurred four years ago at a Diplomatic
protection measures, and section 1202, attribution that is digital or part of an Conference in Beijing where WIPO and
which protects rights management ‘‘automated copyright protection or its member states concluded a new
information (called copyright management system.’’ 48 treaty on audiovisual performances.52
management information in U.S. Similar to the approach of the WPPT,
Recent International Developments the Beijing Treaty on Audiovisual
law) 43—but did not make any
additional changes, finding that ‘‘[t]he There have also been changes to the Performances also contains provisions
treaties do not require any change in the landscape of moral rights protection on CMI and moral rights for audiovisual
substance of copyright rights or internationally since the U.S. acceded to performers.53
exceptions in U.S. law.’’ 44 the Berne Convention in 1989. The Availability and Use of Licenses,
Section 1202 includes prohibitions on Copyright Office noted in its 1996 report Contracts, and State Laws
both providing false copyright Waiver of Moral Rights in Visual
management information (‘‘CMI’’), and Artworks that, while statutory Another part of the patchwork upon
removing or altering CMI.45 In addition recognition of the commonly recognized which moral rights protection in the
to facilitating the administration of an moral rights—i.e., attribution and United States relies is state contract law,
author’s or right holder’s economic integrity—is the norm internationally, which allows authors to negotiate for
rights, the CMI protections afforded by the strength of the moral rights laws protection of their rights of attribution
section 1202 may have implications for varied among Berne members, even and integrity through private ordering.
among those with the same basic legal Since the United States’ accession to the
authors’ protection and enforcement of
systems.49 For example, at the time of Berne Convention, a major change to
their moral rights.46 However, two
the Report the United Kingdom required this area has been the emergence of
aspects of section 1202 may limit its
an author or her heirs, in some cases, to Creative Commons and its various
usefulness as a mechanism to protect an
assert the right of paternity and was licenses that have simplified licensing
author’s moral rights. First, to be liable
generally considered to have adopted for all kinds of authors and users, large
under section 1202, a person who
one of the more restrictive approaches and small. The CC license suites have
removes copyright management
to implementing moral rights.50 served to facilitate private ordering,
information must know both that they
However, ten years later, in 2006, the including for individual authors that
have caused its removal and that such
United Kingdom amended its moral would not previously have been able to
removal is likely to cause others to afford the services of a lawyer to create
infringe the work.47 Second, while most rights provision by extending to
licenses to govern use of their works.54
qualifying performances the right to
42 See WCT Notification No. 10: WIPO Copyright
51 See Performances (Moral Rights, etc.)
Treaty: Ratification by the United States of [defendant] had a reasonable ground to believe it
America, WIPO (Sept. 14, 1999), available at http:// Regulations 2006, SI 2006/18, arts. 5–6 (UK).
was likely to happen.’’). 52 See Beijing Treaty on Audiovisual
www.wipo.int/treaties/en/notifications/wct/treaty_ 48 Compare Murphy v. Millennium Radio Grp.
wct_10.html; WPPT Notification No. 8: WIPO Performances, June 24, 2012, 51 I.L.M. 1214 (2012)
LLC, 650 F.3d 295, 305 (3d Cir. 2011) (rejecting (‘‘Beijing Treaty’’).
Performances and Phonograms Treaty: Ratification argument that the definition of CMI under section 53 See Beijing Treaty art. 5 (‘‘Moral Rights’’), art.
by the United States of America, WIPO (Sept. 14, 1202 is ‘‘restricted to the context of ‘automated
1999), available at http://www.wipo.int/treaties/en/ 16 (‘‘Obligations Concerning Rights Management
copyright protection or management systems’’’), Information’’). Negotiations to conclude this treaty
notifications/wppt/treaty_wppt_8.html. and Williams v. Cavalli S.p.A., No. CV 14–06659–
43 The other sections of chapter 12 include took more than a decade, with a major point of
AB (JEMx), 2015 WL 1247065, at *3 (C.D. Cal. Feb. contention involving the provision on contractual
sections 1203 and 1204, which set forth available 12, 2015) (holding that ‘‘[t]he plain meaning of
civil remedies and criminal sanctions for violation transfers. See Beijing Treaty art. 12; see also Press
§ 1202 indicates that CMI can include non-digital Release, WIPO, WIPO Diplomatic Conference
of sections 1201 and 1202, and section 1205, which copyright information’’), and Leveyfilm, Inc. v. Fox
explicitly carves out federal and state laws affecting Opens in Beijing to Conclude Treaty on Performers’
Sports Interactive Media, LLC, 999 F. Supp. 2d Rights in Audiovisual Productions, WIPO Press
Internet privacy. 17 U.S.C. §§ 1203–1205. 1098, 1101–02 (N.D. Ill. 2014) (noting that the
44 H.R. Rep. No. 105-551, pt. 1, at 9 (1998).
Release PR/2012/713 (June 20, 2012), available at
majority of courts have rejected a requirement for http://www.wipo.int/pressroom/en/articles/2012/
45 The term ‘‘copyright management information’’ CMI to be digital under section 1202), and Fox v. article_0012.html (noting that as far back as the year
in the Copyright Act is seen as a synonymous term Hildebrand, No. CV 09–2085 DSF (VBKx), 2009 WL 2000 negotiators could not agree on the issue
for ‘‘rights management information’’ as used in the 1977996, at *3 (C.D. Cal. July 1, 2009) (‘‘The plain involving transfer of rights, and a breakthrough
WCT and WPPT. See S. Rep. No. 105–190, at 11 language of the statute indicates that the DMCA compromise occurred in June 2011). This treaty has
n.18 (1998) (‘‘Rights management information is provision at issue is not limited to copyright notices not yet entered into force, and the United States has
more commonly referred to in the U.S. as copyright that are digitally placed on a work.’’), with Textile not yet ratified it. The Obama Administration has
management information (CMI).’’). Secrets Int’l Inc. v. Ya-Ya Brand Inc., 524 F. Supp. submitted a legislative package to Congress in
46 Section 1202 makes it an offense to 2d 1184, 1201 (C.D. Cal. 2007) (‘‘[T]he Court [] support of U.S. implementation of the Beijing
‘‘intentionally remove or alter any copyright cannot find that the provision was intended to Treaty. See Letter from Michelle K. Lee, Under
management information,’’ which includes the apply to circumstances that have no relation to the Sec’y Commerce for Intellectual Prop. & Dir., U.S.
name of a work’s author. 17 U.S.C. §§ 1202(b)(1), Internet, electronic commerce, automated copyright Patent & Trademark Office, to Joseph R. Biden,
(c)(2). See Jane C. Ginsburg, Have Moral Rights protections or management systems, public President of the Senate (Feb. 26, 2016), available at
Come of (Digital) Age in the United States?, 19 registers, or other technological measures or http://www.uspto.gov/sites/default/files/
Cardozo Arts & Ent. L.J. 9, 11 (2001) (‘‘The DMCA processes as contemplated in the DMCA as a documents/Beijing-treaty-package.pdf (treaty
may contain the seeds of a more general attribution whole.’’), and IQ Grp., Ltd. v. Wiesner Publ’g, LLC, implementation package for the Beijing Treaty on
right. . . .’’); see also Greg Lastowka, Digital 409 F. Supp. 2d 587, 597 (D.N.J. 2006) (holding that Audiovisual Performances which includes a
Attribution: Copyright and the Right to Credit, 87 ‘‘[t]o come within § 1202, the information removed transmittal letter, Beijing Treaty Implementation
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B.U. L. Rev. 41, 69–73 (2007). must function as a component of an automated Act of 2016, and Statement of Purpose and Need
47 See 17 U.S.C. 1202(a)–(b); see also Stevens v. copyright protection or management system’’). The and Sectional Analysis).
Corelogic, No. 14-cv-1158, 2016 WL 4371549, at *5, majority position seems to accord with statements 54 Founded in 2001, Creative Commons offers

6 (S.D. Cal. July 1, 2016) (‘‘Under § 1202(b)(1), from the legislative history. See, e.g., S. Rep. No. various open source content licenses. Creative
Plaintiffs must present evidence that [defendant] 105–190, at 16 (1998) (‘‘CMI need not be in digital Commons Project, Cover Pages (Aug. 22, 2008),
intentionally removed or altered CMI. . . . ’’ and form, but CMI in digital form is expressly http://xml.coverpages.org/creativeCommons.html.
‘‘[a]lthough Plaintiffs need not show actual included.’’). These types of licenses were held to be governed
49 See Waiver of Moral Rights at 53.
infringement, the fact that there was none is by copyright law rather than contract law in
relevant to Plaintiffs’ burden to show that 50 See Waiver of Moral Rights at 47–51, 53. Continued

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7874 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Notices

Currently there are over one billion launching point for the issuance of this criticized the limited scope of existing
works licensed under Creative Notice of Inquiry. law, ranging from upset that a right of
Commons licenses, most of which Seven sessions covered the historical publicity is not a federal right 66 to
require attribution of the author.55 development of moral rights, the value disappointment with VARA’s under-
authors place on moral rights, the inclusiveness and strict standards.67
Changes in Technology to Deliver various ways current law provides for Discussion also addressed the role of
Content and Identify Content these rights, and new considerations for technology, both in creation and in
The evolution of technology in the the digital age. Participants, including dissemination of authorized and
past few decades has also impacted the professional authors, artists, musicians, unauthorized works. For example, a
availability of moral rights protections and performers, discussed the photographer noted the importance of
for modern authors. Technology can importance that copyright law generally, attribution that stays with images,68 and
facilitate improved identification and and attribution specifically, plays in a photo company described the
licensing of works with persistent supporting their creative process and technology they use to persistently
identifiers,56 while, at the same time, it their livelihood.59 Leading academics connect authorship information to
can also make it easier to remove provided an overview of the scope of images.69
attribution elements and distribute the moral rights and how countries, Looking at what lessons might be
unattributed works widely.57 including the United States, approach gleaned from the experiences of other
these concepts. 60 countries, one panelist commented that
II. Congressional Copyright Review and
Many participants identified the right there is ‘‘tremendous diversity in how
This Study
of attribution as particularly important different countries have implemented
As part of its effort to begin a dialogue to authors, both from a personal and moral rights,’’ 70 and another confirmed
about moral rights protections in the from an economic perspective. For that moral rights litigation constitutes
United States, the Copyright Office example, participants cited the role of only a small percentage of the copyright
organized a symposium entitled copyright management information for cases on those countries’ litigation
‘‘Authors, Attribution, and Integrity: purposes of attribution, and discussed documents.71
Examining Moral Rights in the United the perceived strengths and limitations
States,’’ which was held on April 18, III. Subjects of Inquiry
of section 1202.61 Keynote speaker
2016.58 The symposium served as a Professor Jane Ginsburg posited ways to The Copyright Office seeks public
strengthen the right of attribution.62 comments addressing how existing law,
Jacobsen v. Katzer, 535 F.3d 1373, 1380–83 (Fed. Others discussed the possibilities of including provisions found in title 17 of
Cir. 2008). the U.S. Code as well as other federal
55 Creative Commons, https://
using non-copyright laws post-Dastar,63
creativecommons.org/ (last visited Jan. 5, 2017) as well as expressing concerns about and state laws, affords authors with
(‘‘1.1 billion works and counting.’’). how potential moral rights-like causes effective protection of their rights,
56 For example, the PLUS Coalition has created an
of action might interact with First equivalent to those of moral rights of
image rights language to allow for global
Amendment protections.64 attribution and integrity.
communication of image rights information, and it The Office invites written comments
is currently developing an image registry that will Some participants asserted that the
function as a hub connecting registries worldwide current patchwork of laws, particularly in particular on the subjects below. A
and providing both literal and image-based the availability of contract law, the work party choosing to respond to this Notice
searches. PLUS Coalition, Comments Submitted in
for hire doctrine, and collective of Inquiry need not address every
Response to U.S. Copyright Office’s Apr. 24, 2015 subject, but the Office requests that
Notice of Inquiry (Visual Works Study) at 1 (July bargaining agreements (available in
22, 2015) (noting that the Coalition’s unique image some industry sectors), provides responding parties clearly identify and
rights language is meant to address the ‘‘challenges sufficient protection for moral rights
[arising] from a present inability to ensure that any Allan Adler, Ass’n of Am. Publishers (‘‘AAP’’))
person or machine encountering a visual work has concerns.65 In contrast, several voices
(noting that the testimony of AAP at the 2014
ready access to rights information sufficient to hearing ‘‘raise[d] the threshold policy question of
allow the work to be identified, and sufficient to 59 See Session 4: The Importance of Moral Rights
‘whether to superimpose vague, subjective, and
facilitate an informed decision regarding the to Authors, 8 Geo. Mason J. Int’l Com. L. 87, 90 wholly unpredictable new rights upon a
display, reproduction and distribution of the (2016). longstanding balanced and successful copyright
work’’). 60 See Session 1: Overview of Moral Rights, 8 Geo. system.’’’).
57 Indeed, CMI is of particular interest to visual
Mason J. Int’l Com. L. 7 (2016). 66 See Session 2: The U.S. Perspective, 8 Geo.
artists who embed copyright information in their 61 See, e.g., Jane C. Ginsburg, Keynote Address, Mason J. Int’l Com. L. 26, 30 (2016) (remarks of
works only to find it unlawfully stripped from The Most Moral of Rights: The Right to be Duncan Crabtree-Ireland, SAG–AFTRA).
digital copies. This makes it difficult for potential Recognized as the Author of One’s Work, 8 Geo. 67 See, e.g., Jane C. Ginsburg, Keynote Address,
users to identify and contact the copyright owner Mason J. Int’l Com. L. 44, 48, 60–72 (2016); Session The Most Moral of Rights: The Right to be
to obtain a license to use a work found online. See 4: The Importance of Moral Rights to Authors, 8 Recognized as the Author of One’s Work, 8 Geo.
Columbia University Libraries, Comments Geo. Mason J. Int’l Com. L. 87, 91–93 (2016) Mason J. Int’l Com. L. 44, 53 (2016); Session 5: The
Submitted in Response to U.S. Office’s Apr. 24, (comments of Yoko Miyashita, Getty Images). Intersection of Moral Rights and Other Laws, 8 Geo.
2015 Notice of Inquiry (Visual Works Study) at 2 62 See Jane C. Ginsburg, Keynote Address: The Mason J. Int’l Com. L. 106, 107–10, 113–14 (2016)
(July 23, 2015) (‘‘Rights metadata that includes (remarks of Sonya G. Bonneau, Geo. Univ. Law Ctr.;
Most Moral of Rights: The Right to be Recognized
author attribution and source information would [ ] Eugene Mopsik, Am. Photographic Artists; & Nancy
as the Author of One’s Work, 8 Geo. Mason J. Int’l
facilitate subsequent re-uses of visual works while E. Wolff, Cowan, DeBaets, Abrahams & Sheppard
at the same time support the interests of legitimate Com. L. 44, 72–81 (2016).
63 See, e.g., Session 2: The U.S. Perspective, 8 LLP).
copyright owners.’’). 68 See Session 5: The Intersection of Moral Rights
58 The Office co-hosted this symposium with the Geo. Mason J. Int’l Com. L. 26, 30–34 (2016)
(remarks of Duncan Crabtree-Ireland, SAG–AFTRA, and Other Laws, 8 Geo. Mason J. Int’l Com. L. 106,
George Mason University School of Law and its
& Peter K. Yu, Tex. A&M Univ. Sch. of Law); 110 (2016) (remarks of Eugene Mopsik, Am.
Center for the Protection of Intellectual Property.
Session 6: New Ways to Disseminate Content and Photographic Artists).
Videos of the proceedings can be accessed on the
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U.S. Copyright Office Web site event page at http:// the Impact on Moral Rights, 8 Geo. Mason J. Int’l 69 See Session 4: The Importance of Moral Rights

www.copyright.gov/events/moralrights/. The official Com. L. 125, 139 (2016) (remarks of Stanley Pierre- to Authors, 8 Geo. Mason J. Int’l Com. L. 87, 92
transcript has been published by the George Mason Louis, Entm’t Software Ass’n). (2016) (remarks of Yoko Miyashita, Getty Images).
64 See Session 5: The Intersection of Moral Rights 70 Session 7: Where Do We Go From Here?, 8 Geo.
Journal of International Commercial Law. See
Symposium, Authors, Attribution, and Integrity: and Other Laws, 8 Geo. Mason J. Int’l Com. L. 106, Mason J. Int’l Com. L. 142, 147 (2016) (remarks of
Examining Moral Rights in the United States, 8 Geo. 119–20 (2016) (remarks of Paul Alan Levy, Pub. Mira Sundara Rajan, Univ. of Glasgow Sch. of Law).
Mason J. Int’l Com. L. 1 (2016), available at http:// Citizen). 71 See Session 1: Overview of Moral Rights, 8 Geo.

www.georgemasonjicl.org/wp-content/uploads/ 65 See Session 2: The U.S. Perspective, 8 Geo. Mason J. Int’l Com. L. 7, 15 (2016) (remarks of
2016/08/Summer-Issue-2016.pdf. Mason J. Int’l Com. L. 26, 27–29 (2016) (remarks of Daniel Gervais, Vand. Law Sch.).

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Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Notices 7875

separately address each numbered challenges and problems faced by ephemeral reproductions to facilitate
subject for which a response is authors who want to protect the the digital transmission of the sound
submitted. attribution and integrity of their works? recording. 17 U.S.C. 112(e).
Licensees may operate under these
General Questions Regarding Other Issues licenses provided they pay the royalty
Availability of Moral Rights in the 10. Are there any voluntary initiatives fees and comply with the terms set by
United States that could be developed and taken by the Copyright Royalty Judges. The rates
1. Please comment on the means by interested parties in the private sector to and terms for the section 112 and 114
which the United States protects the improve authors’ means to secure and licenses are set forth in 37 CFR parts
moral rights of authors, specifically the enforce their rights of attribution and 380 and 382–84.
rights of integrity and attribution. integrity? If so, how could the As part of the terms set for these
Should additional moral rights government facilitate these initiatives? licenses, the Judges designated
protection be considered? If so, what 11. Please identify any pertinent SoundExchange, Inc., as the Collective,
specific changes should be considered issues not referenced above that the i.e., the organization charged with
by Congress? Copyright Office should consider in collecting the royalty payments and
Title 17 conducting its study statements of account submitted by
Dated: January 13, 2017. eligible nonsubscription services such
2. How effective has section 106A as broadcasters and with distributing
(VARA) been in promoting and Karyn Temple Claggett,
the royalties to copyright owners and
protecting the moral rights of authors of Acting Register of Copyrights and Director
performers entitled to receive them. See
visual works? What, if any, legislative of the U.S. Copyright Office.
37 CFR 380.33(b)(1).
solutions to improve VARA might be [FR Doc. 2017–01294 Filed 1–19–17; 8:45 am]
As the designated Collective,
advisable? BILLING CODE 1410–30–P SoundExchange may, once during a
3. How have section 1202’s provisions calendar year, conduct an audit of a
on copyright management information licensee for any or all of the prior three
been used to support authors’ moral LIBRARY OF CONGRESS years in order to verify royalty
rights? Should Congress consider payments. SoundExchange must first
updates to section 1202 to strengthen Copyright Royalty Board
file with the Judges a notice of intent to
moral rights protections? If so, in what [Docket Nos. 17–0008–CRB–AU and 17– audit a licensee and deliver the notice
ways? 0009–CRB–AU] to the licensee. See 37 CFR 380.35.
4. Would stronger protections for On December 22, 2016,
either the right of attribution or the right Notice of Intent To Audit SoundExchange filed with the Judges
of integrity implicate the First notices of intent to audit licensee
Amendment? If so, how should they be AGENCY: Copyright Royalty Board,
Library of Congress. broadcasters Cox Radio, Inc., and
reconciled? Hubbard Broadcasting, Inc., for 2013–
5. If a more explicit provision on ACTION: Public notice.
15. The Judges must publish notice in
moral rights were to be added to the
SUMMARY: The Copyright Royalty Judges the Federal Register within 30 days of
Copyright Act, what exceptions or
announce receipt of two notices of receipt of a notice announcing the
limitations should be considered? What
limitations on remedies should be intent to audit the 2013, 2014, and 2015 Collective’s intent to conduct an audit.
considered? statements of account submitted by See 37 CFR 380.35(c). Today’s notice
broadcasters Cox Radio (Docket No. 17– fulfills this requirement with respect to
Other Federal and State Laws CRB–0009–AU) and Hubbard SoundExchange’s December 22, 2016
6. How has the Dastar decision Broadcasting (Docket No. 17–CRB– notices of intent to audit.
affected moral rights protections in the 0008–AU) concerning royalty payments Dated: January 13, 2017.
United States? Should Congress each made pursuant to two statutory Suzanne M. Barnett,
consider legislation to address the licenses. Chief Copyright Royalty Judge.
impact of the Dastar decision on moral FOR FURTHER INFORMATION CONTACT: [FR Doc. 2017–01319 Filed 1–19–17; 8:45 am]
rights protection? If so, how? Anita Brown, Program Specialist, by BILLING CODE 1410–72–P
7. What impact has contract law and telephone at (202) 707–7658 or by email
collective bargaining had on an author’s at crb@loc.gov.
ability to enforce his or her moral LIBRARY OF CONGRESS
rights? How does the issue of waiver of
Act, title 17 of the United States Code,
moral rights affect transactions and Copyright Royalty Board
grants to copyright owners of sound
other commercial, as well as non-
recordings the exclusive right to [Docket No. 17–0004–CRB–AU, 17–0007–
commercial, dealings?
publicly perform sound recordings by CRB–AU, and 17–0010–CRB–AU]
Insights From Other Countries’ means of certain digital audio
Implementation of Moral Rights transmissions, subject to limitations. Notice of Intent To Audit
Obligations Specifically, the right is limited by the AGENCY: Copyright Royalty Board,
8. How have foreign countries statutory license in section 114 which Library of Congress.
protected the moral rights of authors, allows nonexempt noninteractive digital ACTION: Public notice.
subscription services, eligible
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including the rights of attribution and
integrity? How well would such an nonsubscription services, and SUMMARY: The Copyright Royalty Judges
approach to protecting moral rights preexisting satellite digital audio radio announce receipt of three notices of
work in the U.S. context? services to perform publicly sound intent to audit the 2013, 2014, and 2015
recordings by means of digital audio statements of account submitted by
Technological Developments transmissions. 17 U.S.C. 114(f). In commercial webcasters Radionomy
9. How does, or could, technology be addition, a statutory license in section (Docket No. 17–CRB–0004–AU), IMVU,
used to address, facilitate, or resolve 112 allows a service to make necessary Inc. (Docket No. 17–CRB–0007–AU),

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