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Notice

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

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Information about this document as published in the Federal Register.

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AGENCIES:

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

ACTION:

Request for public comment.

SUMMARY:

The United States Copyright Office and the National Telecommunications and Information Administration invite interested parties to submit comments 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.

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. This Federal Register Notice is intended to solicit comments from interested parties.

DATES:

Comments must be received by August 4, 2000. Reply comments must be received by September 5, 2000.

ADDRESSES:

The Copyright Office and the National Telecommunications and Information Administration invite the public to submit written comments in electronic form by electronic mail or on diskette. See SUPPLEMENTARY INFORMATION for file formats and other information about electronic filing.

Comments submitted by electronic mail should be sent to both 104study@loc.gov and 104study@ntia.doc.gov. E-mail comments should be submitted as file attachments in one of the formats specified under SUPPLEMENTARY INFORMATION and should be sent to both the Copyright Office and National Telecommunications and Information Administration addresses.

Comments sent by regular mail may be sent 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 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. Paper submissions should include a version on diskette in one of the formats specified under SUPPLEMENTARY INFORMATION. Comments should be sent to both the Copyright Office and National Telecommunications and Information Administration addresses.

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FOR FURTHER INFORMATION CONTACT:

Jesse M. Feder, Office of Policy and International Affairs, U.S. Copyright Office, Library of Congress (202) 707-8350 and Jeffrey E.M. Joyner, National Telecommunications and Information Administration (202) 482-1816.

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SUPPLEMENTARY INFORMATION:

File Formats and Required Information

Comments and reply comments may be submitted in electronic form, in one of the following formats:

1. If by electronic mail: Send to “104study@loc.gov” and “104study@ntia.doc.gov” a message containing 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. 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: (1) Adobe Portable Document File (PDF) format (preferred); (2) Microsoft Word Version 7.0 or earlier; (3) WordPerfect 7 or earlier; (4) Rich Text File (RTF) format; or (5) ASCII text file format.

2. If by regular mail or hand delivery: Send, to the appropriate address listed above, two copies of the comment, 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. Start Printed Page 35674

Either the document itself or a cover letter must also 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) Adobe Portable Document File (PDF) format (preferred); (2) Microsoft Word Version 7.0 or earlier; (3) WordPerfect Version 7 or earlier; (4) Rich Text File (RTF) format; or (5) ASCII text file format.

3. If by print only: Anyone who is unable to submit a comment in electronic form should submit an original and two paper copies by hand or by mail to the appropriate address listed above. It may not be feasible for the Copyright Office and the National Telecommunications and Information Administration to place these comments on their respective websites.

Background

On October 28, 1998, the Digital Millennium Copyright Act (“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. This Federal Register Notice is intended to solicit comments from interested parties on those issues.

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 United States Copyright Office and the National Telecommunications and Information Administration of the United States Department of Commerce seek comment on the following specific questions. Parties need not address all questions, but are encouraged to respond to those for which they have particular knowledge or information.

1. Section 109

(a) What effect, if any, has the enactment of prohibitions on circumvention of technological protection measures had on the operation of the first sale doctrine?

(b) What effect, if any, has the enactment of prohibitions on falsification, alteration or removal of copyright management information had on the operation of the first sale doctrine?

(c) What effect, if any, has the development of electronic commerce and associated technology had on the operation of the first sale doctrine?

(d) What is the relationship between existing and emergent technology, on one hand, and the first sale doctrine, on the other?

(e) To what extent, if any, is the first sale doctrine related to, or premised on, particular media or methods of distribution?

(f) To what extent, if any, does the emergence of new technologies alter the technological premises (if any) upon which the first sale doctrine is established?

(g) Should the first sale doctrine be expanded in some way to apply to digital transmissions? Why or why not?

(h) Does the absence of a digital first sale doctrine under present law have any measurable effect (positive or negative) on the marketplace for works in digital form?

1. Section 117

(a) What effect, if any, has the enactment of prohibitions on circumvention of technological protection measures had on the operation of section 117?

(b) What effect, if any, has the enactment of prohibitions on falsification, alteration or removal of copyright management information had on the operation of section 117?

(c) What effect, if any, has the development of electronic commerce and associated technology had on the operation of section 117?

(d) What is the relationship between existing and emergent technology, on one hand, and section 117, on the other?

(e) To what extent, if any, is section 117 related to, or premised on, any particular technology?

(f) To what extent, if any, does the emergence of new technologies alter the technological premises (if any) upon which section 117 is established? Start Printed Page 35675

2. General

(a) Are there any additional issues that should be considered? If so, what are they and what are your views on them?

(b) Do you believe that hearings would be useful in preparing the required report to Congress? If so, do you wish to participate in any hearings?

Information collected from responses to this Federal Register Notice will be considered when preparing the required report for Congress.

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Dated: May 16, 2000.

Marybeth Peters,

Register of Copyrights, United States Copyright Office.

Kathy D. Smith,

Chief Counsel, National Telecommunications and Information Administration.

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[FR Doc. 00-14001 Filed 6-2-00; 8:45 am]

BILLING CODE 1410-30-P