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U.S. Copyright Office, Library of Congress.
Request for comments and notice of public roundtable.
The United States Copyright Office is undertaking a study at the request of Congress to assess the state of U.S. law recognizing and protecting “making available” and “communication to the public” rights for copyright holders. The Office is requesting public comments on how the existing bundle of rights under Title 17 covers the making available and communication to the public rights, how foreign laws have addressed such rights, and the feasibility and necessity of amending U.S. law to strengthen or clarify our law in this area. The Copyright Office also will hold a public roundtable to discuss these topics and to provide a forum for interested parties to address the issues raised by the comments received.
Comments are due on or before April 4, 2014. The public roundtable will be held on May 5, 2014, from 9:00 a.m. to 5:00 p.m. EDT.
All comments should be submitted electronically. To submit comments, please visit http://www.copyright.gov/docs/making_available/. The Web site interface requires submitters to complete a form specifying name and organization, as applicable, and to upload comments as an attachment via a browser button. To meet accessibility standards, commenting parties must upload comments in a single file not to exceed six megabytes (“MB”) in one of the following formats: The Portable Document File (“PDF”) format that contains searchable,accessible text (not an image); Microsoft Word; WordPerfect; Rich Text Format (“RTF”); or ASCII text file format (not a scanned document). The form and face of the comments must include both the name of the submitter and organization. The Office will post all comments publicly on the Office's Web site exactly as they are received, along with names and organizations.
The public roundtable will take place in the Copyright Office Hearing Room, LM-408 of the Madison Building of the Library of Congress, 101 Independence Avenue SE., Washington, DC 20559. The Copyright Office strongly prefers that requests for participation be submitted electronically. A participation request form will be posted on the Copyright Office Web site at http://www.copyright.gov/docs/making_available/ on or about April 7, 2014. If electronic submission of comments or requests for participation is not feasible, please contact the Office at 202-707-1027 for special instructions.
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FOR FURTHER INFORMATION CONTACT:
Maria Strong, Senior Counsel for Policy and International Affairs, by telephone at 202-707-1027 or by email at email@example.com, or Kevin Amer, Counsel for Policy and International Affairs, by telephone at 202-707-1027 or by email at firstname.lastname@example.org.
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The WIPO Internet Treaties—the WIPO Copyright Treaty(“WCT”) 
and the WIPO Performances and Phonograms Treaty (“WPPT”) 
—require member states to recognize the rights of “making available” and “communication to the public” in their national laws. The treaties obligate member states to give authors of works, producers of sound recordings, and performers whose performances are fixed in sound recordings the exclusive right to authorize the transmission of their works and sound recordings, including through interactive platforms, such as the Internet, where the public can choose where and when to access them. In the specific context of interactive, on-demand situations, WCT Article 8 and WPPT Articles 10 and 14 provide treaty members with flexibility in the manner in which they implement this right.
The United States implemented the WIPO Internet Treaties through the Digital Millennium Copyright Act (“DMCA”) in 1998.
Based on advice received from the Copyright Office, among many other experts, Congress did not amend U.S. law to include explicit references to “making available” and “communication to the public,” concluding that Title 17 already provided those rights.
As former Register of Copyrights Marybeth Peters observed:
While Section 106 of the U.S. Copyright Act does not specifically include anything called a “making available” right, the activities involved in making a work available are covered under the exclusive rights of reproduction, distribution, public display and/or public performance. . . . Which of these rights are invoked in any given context will depend on the nature of the “making available” activity.
Indeed, both Congress and the Executive Branch have continued to support this view since the enactment of the DMCA.
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The lack of explicit references to these rights in U.S. law, however, has led some courts and commentators to express uncertainty over how the existing rights in Title 17 may apply to various methods of making of copyrighted works available to the public, including in the digital environment. Especially in the Internet era, in any given case several of these rights (reproduction, distribution, public performance, and public display) may be at issue, depending on the facts involved.
Courts, academics, and practitioners particularly have focused on the scope of the distribution right under Section 106 and have debated whether it fully encompasses the making available of a copyrighted work without proof of an actual distribution.
For example, two early Eighth and Fourth Circuit cases discussing making available yielded conflicting results. The Eighth Circuit in National Car Rental System, Inc. v. Computer Associates International, Inc. rejected the notion that making a work available without more violated the distribution right.
The principal authority to the contrary is the Fourth Circuit's decision in Hotaling v. Church of Jesus Christ of Latter-Day Saints, in which the defendants made several unauthorized microfiche copies of genealogical research materials, one of which ended up in a library collection.
The library did not keep records of public use, and therefore there was no evidence of the copy being loaned to the public.
The court found that making a work available to the public constituted distribution because “[w]hen a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public.” 
A recent Tenth Circuit decision, Diversey v. Schmidly,
followed Hotaling' s conclusion that making a work available to the public constitutes distribution under Section 106(3). Diversey involved a similar situation to Hotaling and addressed a library lending an unauthorized copy of a work to the public. The Tenth Circuit noted, however, that there has not been consensus on Hotaling' s applicability to Internet file-sharing cases, and the court avoided extending its holding to those digital situations.
Other courts have addressed the scope of the distribution right in the online context and have reached similarly conflicting results. The Ninth Circuit in A&M Records v. Napster, Inc. concluded that distribution encompasses “making available,” observing that “Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights.” 
Other courts have disagreed and required actual distribution. Thus, the court in London-Sire Records, Inc. v. Doe 1, which considered infringement of the distribution right through peer-to-peer file sharing, cast doubt on Hotaling, asserting that “[m]erely because the defendant has `completed all the steps necessary for distribution' does not necessarily mean that a distribution has actually occurred.” 
Notably, however, while the London-Sire court required actual distribution, it did not require direct evidence of dissemination over peer-to-peer networks, holding instead that a reasonable fact-finder may infer that distribution actually took place where the defendant has completed all necessary steps for a public distribution.
Other courts have also relied on the language of Section 106(3) to require actual distribution in order to find a violation of that right.
In sum, while Congress and the Copyright Office have agreed that U.S. law covers the making available right of the WCT, courts have encountered difficulties in evaluating the scope of this interactive right, and the level of evidence needed to establish liability, in the specific cases before them.
In a letter dated December 19, 2013, Representative Melvin L. Watt requested that the Copyright Office “assess the state of U.S. law recognizing and protecting `making available' and `communicating to the public' rights for copyright holders. . . . In light of the rapidly changing technology and inconsistency in the various court discussions of these rights . . . it is important that the Copyright Office study the current state of the law in the United States.” Specifically, Representative Watt asked the Office to review and assess: “(1) How the existing bundle of exclusive rights under Title 17 covers the making available and communication to the public rights in the context of digital on-demand transmissions such as peer-to-peer networks, streaming services, and music downloads, as well as more broadly in the digital environment; (2) how foreign laws have interpreted and implemented the relevant provisions of the WIPO Internet Treaties; and (3) the feasibility and necessity of amending U.S. law to strengthen or clarify our law in this area.”
On January 14, 2014, the House Judiciary Committee's Subcommittee on Intellectual Property, Competition, and the Internet held a hearing during which two witnesses were asked to address the issue of the making available right.
These witnesses expressed a variety of views on whether current U.S. copyright law provides sufficient clarity on this issue and whether adding an explicit making available right to Title 17 would Start Printed Page 10573be beneficial.
They agreed, however, that current law is properly construed to provide such protection.
II. Request for Comment
In light of uncertainty among some courts regarding the nature and scope of the making available and communication to the public rights, and to facilitate the study requested by Representative Watt, the Copyright Office seeks public comments on the three main issues listed above. The Office poses additional questions on these three topics below, and requests that commenters identify the questions they are answering in their responses.
1. Existing Exclusive Rights Under Title 17
a. How does the existing bundle of exclusive rights currently in Title 17 cover the making available and communication to the public rights in the context of digital on-demand transmissions such as peer-to-peer networks, streaming services, and downloads of copyrighted content, as well as more broadly in the digital environment?
b. Do judicial opinions interpreting Section 106 and the making available right in the framework of tangible works provide sufficient guidance for the digital realm?
2. Foreign Implementation and Interpretation of the WIPO Internet Treaties
a. How have foreign laws implemented the making available right (as found in WCT Article 8 and WPPT Articles 10 and 14)? Has such implementation provided more or less legal clarity in those countries in the context of digital distribution of copyrighted works?
b. How have courts in foreign countries evaluated their national implementation of the making available right in these two WIPO treaties? Are there any specific case results or related legislative components that might present attractive options for possible congressional consideration?
3. Possible Changes to U.S. Law
a. If Congress continues to determine that the Section 106 exclusive rights provide a making available right in the digital environment, is there a need for Congress to take any additional steps to clarify the law to avoid potential conflicting outcomes in future litigation? Why or why not?
b. If Congress concludes that Section 106 requires further clarification of the scope of the making available right in the digital environment, how should the law be amended to incorporate this right more explicitly?
c. Would adding an explicit “making available” right significantly broaden the scope of copyright protection beyond what it is today? Why or why not? Would existing rights in Section 106 also have to be recalibrated?
d. Would any amendment to the “making available” right in Title 17 raise any First Amendment concerns? If so, how can any potential issues in this area be avoided?
e. If an explicit right is added, what, if any, corresponding exceptions or limitations should be considered for addition to the copyright law?
If there are any pertinent issues not discussed above, the Office encourages interested parties to raise those matters in their comments.
III. Public Roundtable
On May 5, 2014, the Copyright Office will hold a public roundtable to hear stakeholder views and to initiate discussion of the three topics identified above. The agenda and the process for submitting requests to participate in the public roundtable will be available on the Copyright Office Web site on or about April 7, 2014.
IV. Requests To Participate
Requests to participate in the public roundtable should be submitted online at http://www.copyright.gov/docs/making_available/. Nonparticipants who wish to attend and observe the discussion should note that seating is limited and, for nonparticipants, will be available on a first come, first served basis.
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Dated: February 20, 2014.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2014-04104 Filed 2-24-14; 8:45 am]
BILLING CODE 1410-30-P