Noncommercial Use of Pre-1972 Sound Recordings That Are Not Being Commercially Exploited
| Published date | 09 April 2019 |
| Citation | 84 FR 14242 |
| Record Number | 2019-06883 |
| Section | Rules and Regulations |
| Court | Copyright Office,Library Of Congress |
Federal Register, Volume 84 Issue 68 (Tuesday, April 9, 2019)
[Federal Register Volume 84, Number 68 (Tuesday, April 9, 2019)]
[Rules and Regulations]
[Pages 14242-14257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06883]
[[Page 14241]]
Vol. 84
Tuesday,
No. 68
April 9, 2019
Part IIILibrary of Congress-----------------------------------------------------------------------Copyright Office-----------------------------------------------------------------------37 CFR Part 201Noncommercial Use of Pre-1972 Sound Recordings That Are Not Being
Commercially Exploited; Rule
Federal Register / Vol. 84, No. 68 / Tuesday, April 9, 2019 / Rules
and Regulations
[[Page 14242]]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. 2018-8]
Noncommercial Use of Pre-1972 Sound Recordings That Are Not Being
Commercially Exploited
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Final rule.
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SUMMARY: The U.S. Copyright Office is issuing a final rule regarding
the Classics Protection and Access Act, title II of the Orrin G. Hatch-
Bob Goodlatte Music Modernization Act. In connection with the
establishment of federal remedies for unauthorized uses of sound
recordings fixed before February 15, 1972 (``Pre-1972 Sound
Recordings''), Congress established an exception for certain
noncommercial uses of Pre-1972 Sound Recordings that are not being
commercially exploited. To qualify for this exception, a user must file
a notice of noncommercial use after conducting a good faith, reasonable
search to determine whether the Pre-1972 Sound Recording is being
commercially exploited, and the rights owner of the sound recording
must not object to the use within 90 days. After soliciting three
rounds of public comments through a notice of inquiry and a notice of
proposed rulemaking, the Office is issuing final regulations
identifying the specific steps that a user should take to demonstrate
she has made a good faith, reasonable search. The rule also details the
filing requirements for the user to submit a notice of noncommercial
use and for a rights owner to submit a notice opting out of such use.
DATES: Effective May 9, 2019.
FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and
Associate Register of Copyrights, by email at [email protected] or
Anna Chauvet, Associate General Counsel, by email at
[email protected]. Each can be contacted by telephone by calling
(202) 707-8350.
SUPPLEMENTARY INFORMATION:
I. Background
Title II of the Orrin G. Hatch-Bob Goodlatte Music Modernization
Act, H.R. 1551 (``MMA''), the Classics Protection and Access Act,
created chapter 14 of the copyright law, title 17, United States Code,
which, among other things, extends remedies for copyright infringement
to owners of sound recordings fixed before February 15, 1972 (``Pre-
1972 Sound Recordings''). Under the provision, rights owners are
eligible to recover statutory damages and/or attorneys' fees for the
unauthorized use of their Pre-1972 Sound Recordings if certain
requirements are met. To be eligible for these remedies, rights owners
must typically file schedules listing their Pre-1972 Sound Recordings
(``Pre-1972 Schedules'') with the U.S. Copyright Office (the
``Office''), which are indexed into the Office's public records.\1\
This requirement is ``designed to operate in place of a formal
registration requirement that normally applies to claims involving
statutory damages.'' \2\
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\1\ 17 U.S.C. 1401(f)(5)(A)(i)(I)-(II).
\2\ H.R. Rep. No. 115-651, at 16 (2018); see S. Rep. No. 115-
339, at 18 (2018).
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The MMA also creates a new mechanism for users to obtain
authorization to make noncommercial uses of Pre-1972 Sound Recordings
that are not being commercially exploited. Under section 1401, a person
may file a notice with the Copyright Office proposing a specific
noncommercial use after taking steps to determine whether the recording
is, at that time, being commercially exploited by or under the
authority of the rights owner.\3\ Specifically, before determining that
the recording is not being commercially exploited, a person must first
undertake a ``good faith, reasonable search'' of both the Pre-1972
Schedules indexed by the Copyright Office and music services ``offering
a comprehensive set of sound recordings for sale or streaming.'' \4\ At
that point, the potential user may file a notice identifying the Pre-
1972 Sound Recording and nature of the intended noncommercial use with
the Office (a ``notice of noncommercial use'' or ``NNU''), and this
notice is also indexed into the Office's public records.\5\
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\3\ 17 U.S.C. 1401(c)(1)(A)-(B).
\4\ Id. at 1401(c)(1)(A).
\5\ Id. at 1401(c)(1)(B), (C).
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In response, the rights owner of the Pre-1972 Sound Recording may
file a notice with the Copyright Office ``opting out'' of (i.e.,
objecting to) the requested noncommercial use (``Pre-1972 Opt-Out
Notice''), and a user nonetheless engaging in such use may be subject
to liability under section 1401(a).\6\ A rights owner has 90 days from
the date the NNU is indexed into the Office's public records to file a
Pre-1972 Opt-Out Notice.\7\ If, however, the rights owner does not opt-
out within 90 days, the user may engage in the noncommercial use of the
Pre-1972 Sound Recording without violating section 1401(a).\8\
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\6\ Id. at 1401(c)(1). The Office notes that a rights owner may
opt out of the proposed use for any reason.
\7\ Id. at 1401(c)(1)(C).
\8\ Id. at 1401(c)(1).
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The MMA requires the Copyright Office to issue regulations
identifying the ``specific, reasonable steps that, if taken by a
[noncommercial user of a Pre-1972 Sound Recording], are sufficient to
constitute a good faith, reasonable search'' of the Office's records
and music services to support a conclusion that a relevant Pre-1972
Sound Recording is not being commercially exploited.\9\ A user
following these ``specific, reasonable steps'' will satisfy the
statutory requirement of conducting a good faith search, even if the
sound recording is later discovered to be commercially exploited.\10\
Other searches may also satisfy this statutory requirement, but the
user would need to independently demonstrate how she met the
requirement if challenged.\11\ The Office must also issue regulations
``establish[ing] the form, content, and procedures'' for users to file
NNUs and rights owners to file Pre-1972 Opt-Out Notices.\12\
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\9\ Id. at 1401(c)(3)(A).
\10\ Id. at 1401(c)(4)(B).
\11\ Id. at 1401(c)(4)(A)-(B).
\12\ Id. at 1401(c)(3)(B), (5)(A).
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On October 16, 2018, the Office issued a notice of inquiry
(``NOI'') soliciting comments regarding the specific steps a user
should take to demonstrate she has made a good faith, reasonable
search; the filing requirements for the user to submit an NNU; and the
filing requirements for a rights owner to submit a Pre-1972 Opt-Out
Notice objecting to such use.\13\ On February 5, 2019, the Office
issued a notice of proposed rulemaking (``NPRM'') soliciting comments
on proposed regulations regarding these same issues.\14\ In response to
the NPRM, the Office received nine comments, discussed further
below.\15\
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\13\ 83 FR 52176 (Oct. 16, 2018) (``NOI''). Twenty-five comments
were received in response to the NOI.
\14\ 84 FR 1661 (Feb. 5, 2019) (``NPRM'').
\15\ The comments received in response to the NOI and NPRM are
available online at https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=PS&D=COLC-2018-0008. References to these comments are by party name
(abbreviated where appropriate), followed by ``Initial,'' ``Reply,''
or ``NPRM Comment,'' as appropriate.
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Having reviewed and carefully considered the comments, the Office
now issues a final rule.\16\
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\16\ Public Knowledge alludes to the Office's need to address
concerns raised in its written comments. Public Knowledge NPRM
Comment at 10 n.13. The Office believes the NPRM and final rule
reflect careful and appropriate consideration of comments as
required under the Administrative Procedure Act.
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[[Page 14243]]
II. Final Rule
The final rule governs three specific areas: (i) The ``specific,
reasonable steps that, if taken by a [noncommercial user of a Pre-1972
Sound Recording], are sufficient to constitute a good faith, reasonable
search'' to support a conclusion that a relevant Pre-1972 Sound
Recording is not being commercially exploited; (ii) the form, content,
and procedures for a user, having made such a search, to file an NNU;
and (iii) the form, content, and procedures for a rights owner to file
a Pre-1972 Opt-Out Notice.\17\
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\17\ 17 U.S.C. 1401(c)(3)(A), (B). The final rule also confirms
that 37 CFR 201.4 does not govern the filing of NNUs and Pre-1972
Opt-Out Notices. Similarly, the final rule makes a technical edit to
reflect that the filing of notices of use of sound recordings under
statutory license (17 U.S.C. 112(e), 114) are not governed by 37 CFR
201.4.
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As described in more detail by the NPRM, the Office confirms that
the noncommercial use exception under section 1401(c) is supplementary
and does not negate other exceptions and limitations that may be
available to a prospective user, including fair use and the exceptions
for libraries and archives.\18\ Regarding fair use specifically, the
Office notes that although certain noncommercial uses may constitute
fair use, not all may be fair; instead, courts will balance the purpose
and character of the use against the other fair use factors.\19\
Similarly, the Office confirms that the noncommercial use exception
should not affect application of the section 108(h) exception available
for libraries and archives performing a reasonable investigation
regarding the availability of published works in the last twenty years
of their copyright term.\20\
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\18\ NPRM at 1662-63 & n.19 (noting many comments urging this
approach). See 17 U.S.C. 1401(f)(1)(A); id. at 1401(c)(2)(C),
(c)(5)(B).
\19\ See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584-
85 (1994) (noting ``the commercial or nonprofit educational
character of a work is `not conclusive' '' to fair use (quoting Sony
Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 448
(1984))); H.R. Rep. No. 94-1476, at 66 (1976) (same).
\20\ NPRM at 1662-63.
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In addition to promulgating this rule, the Copyright Office intends
to prepare additional public resources regarding Pre-1972 Sound
Recordings and the new noncommercial use exception, such as a public
circular.
A. Good Faith, Reasonable Search
The proposed rule identified five steps (six in the case of Alaska
Native and American Indian ethnographic sound recordings) that, if
taken, would support a conclusion that a relevant Pre-1972 Sound
Recording is not being commercially exploited.\21\ The final rule
largely adopts the proposed rule, with some adjustments in response to
public comment, including one additional step. Consistent with the
statute's directive to provide ``specific'' steps that are
``sufficient, but not necessary'' to demonstrate a Pre-1972 Sound
Recording is not being commercialized, the rule adopts a ``checklist''
approach for users to search across categories rather than an ``open-
ended'' approach to better provide certainty to users.\22\ Users should
progressively search through a set number of categories if and until a
match is found, with a match evidencing commercial exploitation of the
Pre-1972 Sound Recording.\23\ The categories to be searched are listed
in recommended search order, to reduce the likelihood of duplicative
searching.\24\ In cases where the type of recording (e.g., classical
music or ethnographic sound recordings) warrants searching an
additional resource or more particularized search criteria, these
criteria are included on a tailored basis, as applicable to a
particular genre.\25\
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\21\ Id. at 1663-68; 17 U.S.C. 1401(c)(3)(A).
\22\ NPRM at 1663.
\23\ Id.
\24\ Id.
\25\ Id. at 1663, 1669.
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The comments received overwhelmingly praised the proposed rule,
describing it as ``balanced,'' \26\ ``measured,'' \27\ ``thoughtful and
realistic,'' \28\ and a ``common-sense approach.'' \29\ A number of
stakeholders favored the Office's ``checklist'' approach; \30\ for
example, EFF stated that the ``proposed five- or six-step search
methodology for identifying commercial exploitation is generally
reasonable,'' \31\ and A2IM and RIAA ``believe the checklist-based
approach aptly balances users' need for simplicity with rights owners'
need for thoroughness.'' \32\
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\26\ Copyright Alliance NPRM Comment at 1 (``The Copyright
Alliance commends the Copyright Office for crafting a balanced rule
that aligns with the statutory requirements and takes into account
the rights of sound recording owners and interests of potential
users.'').
\27\ Recording Academy NPRM Comment at 1 (the proposed rule
``represents a measured effort to allow potential users to
effectively avail themselves'' of the noncommercial use exception;
``applaud[ing the Office] for carefully considering all of the
diverse viewpoints that were reflected in the comments . . .'').
\28\ Future of Music Coalition (``FMC'') NPRM Comment at 1 (``we
are grateful for the thoughtful and realistic approach'').
\29\ A2IM & RIAA NPRM Comment at 2.
\30\ See, e.g., Copyright Alliance NPRM Comment at 1 (``we
applaud the Office for taking the checklist-based approach'');
Recording Academy at 2 (``The steps are also thoughtfully sequenced
so that a potential user is more likely to find a commercial use
quickly and with a minimal amount of effort.'').
\31\ EFF NPRM Comment at 1.
\32\ A2IM & RIAA NPRM Comment at 2.
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The final rule preserves this basic framework, with a few
adjustments discussed below, including an additional step for locating
uses on YouTube authorized by the rightsholder. In sum, the final rule
requires searching the following:
1. The Copyright Office's database of Pre-1972 Schedules;
2. One of the following major search engines: Google, Yahoo!, or
Bing;
3. One of the following major streaming services: Amazon Music
Unlimited, Apple Music, Spotify, or TIDAL;
4. YouTube, for authorized uses;
5. The SoundExchange ISRC database;
6. Amazon.com, and, where the prospective user reasonably
believes the recording implicates a listed niche genre, an
additional listed online retailer of physical product; and
7. In the case of ethnographic Pre-1972 Sound Recordings of
Alaska Native or American Indian tribes, searching through
contacting the relevant tribe, association, and/or holding
institution.
As reflected by the bulk of the comments received, the Office
concludes that the final rule steps are reasonable to expect of an
individual user, yet exhaustive enough to qualify that user for a safe
harbor as to the search's sufficiency from the perspective of rights
owners' interests. As noted in the NPRM, the Office is concerned that
limiting sources to be searched to only the most commercially popular
services might obscure perspectives of smaller, less mainstream
creators and independent services who play a vital role in ensuring
that a diverse array of cultural contributions are created and made
available to the public.\33\ The final rule attempts to account for the
diversity of models while prioritizing services with intuitive search
capabilities and minimizing resources where a subscription is required
to access the search function; the categories to be searched--with the
potential exception of certain interactive streaming services, which
are statutorily required to be included--are all available at no cost
to the user.
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\33\ NPRM at 1663; see FMC Reply at 1-2; Copyright Alliance
Initial at 1 (discussing relationship between ``existing general and
niche markets''); A2IM & RIAA Reply at 9.
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To further ensure the specific steps are reasonable and not
duplicative, the final rule clarifies that the user only needs to keep
progressively searching the categories of sources until she has located
the sound recording (i.e., once she finds the sound recording in one
category, which evidences commercial exploitation, she can stop
searching), or
[[Page 14244]]
exhausted her search options by searching each of the successive
categories without finding the sound recording (i.e., finding no
commercial exploitation).\34\ Public Knowledge contends that ``the
proposed search steps, taken together, are extremely likely to be
duplicative of one another.'' \35\ The steps in the final rule,
however, are purposely listed in recommended order of searching, with
the understanding that searches of the Office's database of Pre-1972
Schedules and search engines may render searching on a streaming
service or other service (i.e., subsequent search categories)
unnecessary.\36\
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\34\ See Hunter NPRM Comment at 2 (``It is unclear if the rule
requires the person searching to look at each category, or to search
the categories in order until they have found the recording, or
exhausted their options.'').
\35\ Public Knowledge NPRM Comment at 4-5; Public Knowledge Ex
Parte Letter at 1.
\36\ NPRM at 1665. See also FMC Ex Parte Letter at 1 (suggesting
``that a search is not duplicative just because it yields the same
results on multiple platforms--as soon as a positive result is
found, the searcher is able to stop.'').
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For example, a search for ``Eleanor Rigby'' in the Copyright
Office's database currently returns one result for this Beatles
recording, and also provides contact information for Capitol Records as
the listed rights owner. A prospective user will therefore learn at
step one that the safe harbor is unavailable for this recording, and
also how to contact the rights owner to potentially negotiate a
permissive use. Similarly, taking Public Knowledge's example, if a user
searches ``Don't Fence me In'' by Bing Crosby and the Andrews Sisters
on Google.com, and the results show the recording being commercially
exploited on services offering sound recordings for sale or streaming,
the user does not need to continue onto the next steps.\37\ But, where
search engine results do not show the recording being commercially
exploited on a section 1401(c)(1)(A) service, the user should proceed
to the next steps, which the Office has concluded, based on the public
comments and its own research, lack an ``extreme likelihood of
duplication'' for those rarer recordings that are not readily located
through the initial steps.\38\ The Office also concludes that the steps
are generally reasonable, in part because they can be conducted
relatively quickly to provide certainty for a potentially long-lasting
safe harbor, using publicly available resources ``without creating an
account or paying a fee.'' \39\
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\37\ Public Knowledge NPRM Comment at 6. ``Don't Fence Me In''
is currently unlisted in the Office's database, but the top
Google.com result shows it ``available on'' Play Music, Deezer, and
iHeartRadio. Google, https://www.google.com/search?client=firefox-b-d&q=%22don%27t+fence+me+in%22+andrews+sisters (last visited Mar. 29,
2019).
\38\ Public Knowledge may conflate the likelihood of duplicated
results for broadly exploited recordings with the likelihood of
duplication for less pervasively available recordings (as shown by
its choice to search for ``Billboard number one singles,'' see
Public Knowledge NPRM Comment at 6). In the former scenario, the
user will quickly stop searching, but the rule is necessarily more
concerned with the latter cases, as the statute asks users to search
multiple ``services,'' suggesting a more robust search is
appropriate to capture less broad but nonetheless bona fide
commercial exploitations. See FMC Ex Parte Letter at 1 (stating the
statute was ``written to protect the full diversity of
rightsholders, big and small, famous and obscure,'' and that
Billboard number one singles ``don't represent a reasonable proxy
for the full diversity of impacted recordings'').
\39\ EFF NPRM Comment at 2. It is not clear which step Public
Knowledge believes requires ``subscription fees''; as explained in
the NPRM, the Office took the suggestion of Public Knowledge and
others to craft steps that minimize or eliminate the need for users
to establish paid subscription accounts, despite persuasive comments
from rightsholder groups suggesting that it would not be
inappropriate to require such searching before engaging in the
proposed uses. Compare Public Knowledge NPRM Comment at 7 with NPRM
at 1664 & n.40. Instead, the Office included steps such as the IRSC
database and search engine searching to provide a similar level of
comprehensiveness while minimizing potential user burdens.
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In addition to the broadly positive comments received and other
specific suggestions from other commenters (including broad-ranging
comments from NCAI) that are discussed below in reference to particular
steps, Public Knowledge raises additional general objections to the
proposed rule. Public Knowledge contends that the Office lacks
authority to include searches of ``search engines, SoundExchange's ISRC
database, and physical product retailers'' as part of a search ``on
services offering a comprehensive set of sound recordings for sale or
streaming.'' \40\ As noted in the NPRM, searches of a search engine and
the ISRC lookup tool are expected to serve as a reasonable proxy for
searches on a wide array of the statutorily identified services that
offer a comprehensive set of sound recordings for sale or streaming, in
an effort to avoid duplicative searching.\41\ As explained in the NPRM,
the Office does not read section 1401(c) so narrowly as to preclude
searching resources--such as the SoundExchange ISRC lookup tool or
major search engines--that are used ``to determine whether'' a Pre-1972
Sound Recording is being commercially exploited on services offering a
comprehensive set of sound recordings for sale or streaming.\42\ Such
cross-platform tools can quickly reveal information relevant to whether
a recording is being used on a variety of services unequivocally
involved in commercially exploiting these sound recordings. To exclude
reliance upon these sources would hamper the Office's ability to craft
a smaller list of ``specific, reasonable steps'' that a user may take
before filing a NNU.\43\ As such, the rule does not stray outside of
the statutory language; each step is to be used as a finding aid for
the statutory category of ``services offering a comprehensive set of
sound recordings for sale or streaming,'' rather than expanding this
category. As noted in the NPRM, the Office has concluded that it is
more reasonable (and less burdensome, more intuitive, cost-effective,
and overall user-friendly) to ask users to conduct one search engine
search that captures multiple streaming services, rather than
individually searching multiple additional interactive services, and to
ask users to search the ISRC database, rather than any of the over
3,100 non-interactive services that are exploiting Pre-1972 Sound
Recordings.\44\
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\40\ Public Knowledge NPRM Comment at 2-4.
\41\ NPRM at 1665, 1667; see also Public Knowledge NPRM Comment
at 5 (claiming that searching on Google or the IRSC database tool is
``extremely likely--perhaps practically certain--to find commercial
exploitation of any recording that would also appear in a direct
search of a streaming service.''). Cf. Public Knowledge Initial at 2
(suggesting search requirements should be ``proportional'').
\42\ 17 U.S.C. 1401(c)(1)(A) (emphasis added). Compare Public
Knowledge NPRM Comment at 2 n.1 (``The most generous reading of the
search engine and ISRC requirements are that they serve as a
reasonable proxy for locating works on `services offering a
comprehensive set of sound recordings for sale or streaming.' '').
\43\ For example, a Google search for the 1947 Famous Blue Jay
Singer's recording ``I'm Bound for Canaan Land'' reveals the work
available through Play Music and Deezer, two services the Office is
not requiring to be searched. Similarly, a search for the 1950 Kings
of Harmony recording ``God Shall Wipe All Tears Away'' reveals that
the recording is available for purchase through Apple Music,
Amazon.com, and sites such as singers.com. It appears, however, that
those recordings would not presently be returned in a search of the
Office's database, Spotify, or authorized YouTube results, and so
the search engine step is an expedient way of confirming that the
sound recording is in fact being commercially exploited through
section 1401(c)(1)(A) services, rather than the Office requiring
users to subscribe to and search these additional services.
\44\ See NPRM at 1665-66. Put another way, given the current
marketplace, it does not appear ``reasonable'' for the Office to
ignore these additional interactive and non-interactive streaming
and for-sale services in crafting the list of steps, and so the
Office has picked a reasonable way to search these services, as the
statute requires.
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Next, and as noted in the NPRM, the noncommercial use exception is
not intended to displace the important role of licensed transactions to
facilitate the use of Pre-1972 Sound Recordings.\45\
[[Page 14245]]
Copyright Alliance, supported by A2IM and RIAA, suggests that the
Office require a user to directly notify a rights owner if that owner
can be located.\46\ While the Office strongly supports resolving uses
through voluntary agreements, requiring prospective users to generally
contact rights owners appears outside the scope of this rulemaking. The
statute asks the Office to promulgate a list of ``specific, reasonable
steps'' that would constitute a search for a given sound recording in
the Office's records and on services offering a comprehensive set of
sound recordings for sale or streaming.\47\ With the exception of the
special case of ethnographic sound recordings, where undisputed
comments suggest the available ownership information for these
recordings is particularly poor, the Office has concluded that
searching the listed services is the more reasonable approach. The
Office does, however, encourage users to contact rights owners that can
be identified (including even after learning that a work is being
commercially exploited) to facilitate permissive uses of these
recordings, including for licensed fees.
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\45\ Id. at 1664. See, e.g., A2IM & RIAA Initial at 1-2
(suggesting that in many cases, voluntary licensing may prove more
efficient within a short timeframe than this exception); Copyright
Alliance Initial at 2-3; SoundExchange Initial at 2.
\46\ Copyright Alliance Initial at 2-3, 5. In response to the
proposed rule, Copyright Alliance, A2IM, and RIAA contend that while
the Office declined to generally require users to contact rights
owners directly, the Office adopted a similar requirement with
respect to ethnographic Pre-1972 Sound Recordings of Alaska Native
or American Indian tribes, by requiring a search through contacting
the relevant tribe, association, and/or holding institution. A2IM &
RIAA NPRM Comment at 4; Copyright Alliance NPRM Comment at 2. As
discussed below, ethnographic field recordings (and the metadata
surrounding such recordings) are uniquely situated. See also NPRM at
1667-68; U.S. Copyright Office, Federal Copyright Protection For
Pre-1972 Sound Recordings 52 (2011), https://www.copyright.gov/docs/sound/pre-72-report.pdf (``Pre-1972 Sound Recordings Report'').
\47\ 17 U.S.C. 1401(c)(1)(A), (c)(3)(A).
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Finally, the Office reaffirms its commitment to periodically
updating this list of specific steps to take into account changes in
the music marketplace.\48\ A2IM and RIAA request that the Office
``publish [notices of inquiry] at some regular interval seeking public
input on whether the list of specific steps'' needs updating, or
``establish a mechanism by which rights owners and/or users can
petition the Office to seek review of the existing list of specific
steps and consider whether updates are warranted.'' \49\ Like other
agencies, the Office accepts petitions proposing rule changes.\50\
Given the extensive comments aired in this rulemaking, the Office
anticipates the current rule to hold for the near term. But should
market changes render the list of specific search steps in the final
rule unworkable, the Office encourages stakeholders to petition the
Office for changes at that time, and the Office will also take
initiative to refresh this list should it become aware of the need to
adjust in response to material changes in the marketplace.\51\
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\48\ See Report and Section-by-Section Analysis of H.R. 1551 by
the Chairmen and Ranking Members of Senate and House Judiciary
Committees, at 25 (2018), https://www.copyright.gov/legislation/mma_conference_report.pdf (``Conf. Rep.'') (search must be based on
``services available in the market at the time of the search'').
\49\ A2IM & RIAA NPRM Comment at 6.
\50\ 5 U.S.C. 553(e) (providing that ``[e]ach agency shall give
an interested person the right to petition for the . . . amendment .
. . of a rule'').
\51\ The Office is not at this time exploring ``whether it
possesses the authority to institute a limited renewal requirement,
under which entries in [Pre-1972 Schedules] would be subject to a
periodic renewal in the same vein as DMCA agent designations.''
Public Knowledge Reply at 17; see NPRM at 1664, n.53. In response to
the NPRM, multiple commenters assert that the statute does not
extend such authority. See, e.g., A2IM & RIAA NPRM Comment at 11;
Copyright Alliance Comment at 7.
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i. Required Sources To Search
1. Searching the Copyright Office's Database of Pre-1972 Schedules
First, section 1401(c) requires that the search must include
searching for the Pre-1972 Sound Recording in the Copyright Office's
database of Pre-1972 Schedules.\52\ The Office has issued a final rule
governing how rights owners may file Pre-1972 Schedules and how they
are made publicly available through an online database.\53\ For each
sound recording, the Pre-1972 Schedule must include the rights owner's
name, the sound recording title, and the featured artist, as well as
the International Standard Recording Code (``ISRC'') (if known and
practicable), and rights owners may opt to include additional
information, such as album title, version, and alternate artist
name(s).\54\
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\52\ 17 U.S.C. 1401(c)(1)(A)(i), (f)(5)(A).
\53\ 84 FR 10679 (Mar. 22, 2019).
\54\ 37 CFR 201.35(f).
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The Office did not receive any comments suggesting changes to the
manner of searching the Office's database of Pre-1972 Schedules, and
the final rule adopts this aspect of the proposed rule without
substantive change. The final rule requires users to search for the
title and featured artist(s) of the Pre-1972 Sound Recording. If the
user knows any of the following attributes of the Pre-1972 Sound
Recording, the search must also include: Alternate artist name(s),
alternate title(s), album title, and the International Standard
Recording Code (``ISRC''). The user may also optionally search any
other attributes known to the user of the sound recording, such as
label or version.
2. Searching With a Major Search Engine
Second, the proposed rule asked the user to search for the Pre-1972
Sound Recording using at least one major search engine, namely: Google,
Yahoo!, or Bing, to determine whether the sound recording is being
commercially exploited.\55\ As noted in the NPRM, users are widely
accustomed to conducting internet searches, and such searching is free
and may render searching on a streaming service or other service
unnecessary.\56\
---------------------------------------------------------------------------
\55\ NPRM at 1665. See A2IM & RIAA Initial at 5; Copyright
Alliance Initial at 4; FMC Reply at 6 (each suggesting that major
search engines should be searched).
\56\ NPRM at 1665.
---------------------------------------------------------------------------
EFF asks the Office to clarify that ``a reasonable search for
commercial exploitation using a search engine does not require an
exhaustive reading of every web page returned as a result of such
search,'' and that ``reading the first 1-2 pages of results and drawing
reasonable inferences from those results, including following those
links whose name or accompanying text suggest that commercial
exploitation might be found there'' should be sufficient.\57\ The
Office agrees with this suggestion, with the caveat that depending upon
the specific results, it may be reasonable for the user to search more
than 1-2 pages (although in other cases these first two pages will
likely be sufficient). The Office's regulations and instructions will
address this issue, and clarify that the purpose of this search is to
determine whether the Pre-1972 Sound Recording is being commercially
exploited (i.e., by being offered for sale in download form or as a new
(not resale) physical product, or through a streaming service), and not
simply whether the internet includes web pages discussing the
recording, such as musicological, historical, or other commentary about
the work.
---------------------------------------------------------------------------
\57\ EFF NPRM Comment at 2.
---------------------------------------------------------------------------
3. Searching on a Digital Streaming Service
Third, the proposed rule asked the user to search at least one of
the following streaming services, each of which offers tens of millions
of tracks: Amazon Music Unlimited, Apple Music, Spotify, or TIDAL. The
Office proposed these streaming services because there appeared to be
agreement from commenters on these services in particular.\58\ These
services currently
[[Page 14246]]
offer some of the largest repertoires of tracks and ``receive digital
feeds from the major labels, large indie labels and significant
distributors.'' \59\ The Office invited public comment on whether
Google Play Music and/or Deezer should be included in the list of
streaming services, as they also offer large repertoires of tracks.
These two services, however, were not identified as possible sources
from the majority of commenters.\60\
---------------------------------------------------------------------------
\58\ NPRM at 1665 & n.64 (citing comments).
\59\ A2IM & RIAA Initial at 5.
\60\ NPRM at 1665.
---------------------------------------------------------------------------
The Office also invited comment on whether users should be required
to search a greater number of streaming services as part of a good
faith, reasonable search.\61\ In response, some stakeholders contend
that a search should include more than one streaming service.\62\ A2IM
and RIAA propose searching two streaming services, but as part of two
searches of services ``grouped into two separate lists,'' one
comprising ``the four/five major streaming services,'' and the second
comprising services with ``a more `specialized' repertoire.'' \63\ They
also contend that Deezer should be included in the group of
``specialized'' streaming services,\64\ along with Bandcamp.\65\ The
comments, however, do not provide any examples of recordings that would
not otherwise be found through the list of proposed steps.
---------------------------------------------------------------------------
\61\ Id.
\62\ FMC NPRM Comment at 2 (``We would support including a
greater number of streaming services, anticipating that the
marketplace may continue to move in a more fragmented and
specialized direction in potentially unpredictable ways.'');
Recording Academy NPRM Comment at 3 (stating that ``searching only
one subscription service is not sufficient''). A spectrum of
commenters suggested, however, that the rule should not require a
user to search all streaming services. A2IM & RIAA NPRM Comment at 7
(proposing users search on two services); EFF Initial at 4
(contending it is ``[r]easonable to include some subset'' of
services); Hunter NPRM Comment at 2 (advocating ``to include as many
services as possible in the list of digital streaming services . . .
to make sure that the statute allows people to be able to search
whatever music streaming service that they have.''). Cf. Internet
Archive Initial at 1 (suggesting that a good faith, reasonable
search ``should entail performing a few high quality searches on a
small number of large services rather than performing a low quality
search across a large number of services''); Public Knowledge
Initial at 5, App. (proposing search of ``no more than one to two''
services). Commenters also noted that searching multiple streaming
services might be duplicative. A2IM & RIAA Initial at 7; Public
Knowledge Initial at 2.
\63\ A2IM & RIAA NPRM Comment at 2.
\64\ Id.
\65\ See id. at 2-3 & n.3; see also Copyright Alliance NPRM
Comment at 3.
---------------------------------------------------------------------------
After careful consideration, the Office concludes that requiring
searches of all these streaming services, or another category of
streaming services, would likely be largely redundant. As noted above,
a search using a search engine may indicate that the Pre-1972 Sound
Recording is available for streaming on various streaming services,
rendering further searching unnecessary; Google, for example, appears
to index Deezer, Play Music, and Spotify.\66\ While these services'
repertoires are not identical, rather than requiring users to search
additional services, the final rule limits the number of streaming
services to be searched, but includes qualitatively different sources
to search. In addition, the Office's determination to add YouTube as a
separate search step may identify commercial exploitations of less
mainstream recordings, reducing the need for a separate search of a
streaming service with a ``specialized'' repertoire. As with all of
these steps, the Office will consider adjusting this rule if conditions
develop that demonstrate a need for adjustment, including adding
additional steps (or removing steps), or the amount of services to be
searched in each step.
---------------------------------------------------------------------------
\66\ The record also suggests it may be premature to include
Google Play Music in the regulatory category, which may soon migrate
to YouTube Music. See A2IM & RIAA NPRM Comment at 2 (stating they do
not oppose including Google Play Music, but requesting Google Play
Music and YouTube Music be included as ``Google is widely expected
to migrate Google Play Music users to YouTube Music sometime in
2019''). See also Ara Wagoner, YouTube Music vs. Spotify: Which is
the Better Streaming Music Service?, Android Central, (June 19,
2018), https://www.androidcentral.com/youtube-music-vs-spotify
(stating that YouTube Music ``doesn't give out a hard number for the
songs in its catalog'').
---------------------------------------------------------------------------
4. Searching YouTube for Authorized Uses
The proposed rule did not request that the user search services
comprised of user-generated content, such as YouTube.\67\ In response
to the NOI, commenters IMSLP.ORG and Public Knowledge maintained that a
search should not include services permitting user-uploaded content
because such services include unauthorized uses of Pre-1972 Sound
Recordings, which do not constitute commercial exploitation ``by or
under the authority of the rights owner'' as required by section
1401(c)(1)(A).\68\ By contrast, Recording Academy urged the Office to
include YouTube.\69\ While the Office noted that legislative history
states that ``it is important that a user . . . make a robust search,
including user-generated services,'' \70\ the Office expressed concern
that a user conducting a section 1401(c) search on a service permitting
user-uploaded content may have no way of knowing if the use of a Pre-
1972 Sound Recording is ``by or under the authority of the rights
owner,'' a condition required by the statute.\71\
---------------------------------------------------------------------------
\67\ NPRM at 1668-69.
\68\ IMSLP.ORG Reply at 2; Public Knowledge Reply at 11.
\69\ Recording Academy Reply at 4.
\70\ NPRM at 1668 n.111 (citing Conf. Rep. at 25). Public
Knowledge asserts that the document characterized by the Office as a
``Conference Report'' is not valid legislative history and is ``not
a persuasive source of authority to anything beyond the personal
opinions of Representative Goodlatte.'' Public Knowledge Reply at 8;
Public Knowledge NPRM Comment at 7. Neither case cited suggests the
wholesale dismissal of subsequent legislative history, as Public
Knowledge advocates. See Quern v. Mandley, 436 U.S. 725, 736 n.10
(1978) (concerning Congress's understanding of a preexisting statute
established by a prior Congress); Covalt v. Carey Canada, Inc., 860
F.2d 1434, 1438-39 (7th Cir. 1988) (affidavits prepared for
litigation by a lobbyist and a Member of the House of
Representatives years after the relevant statute was enacted did not
constitute legislative history). In this case, the timing of the
``Report and Section-by-Section Analysis of H.R. 1551 by the
Chairmen and Ranking Members of Senate and House Judiciary
Committees,'' which was signed and issued by the principal House
Sponsor and Chairman of Judiciary Committee on October 19, 2018,
eight days after the MMA was enacted into law, suggests that it is
entirely proper to afford it some interpretive value as legislative
history.
\71\ NPRM at 1668-69; 17 U.S.C. 1401(c)(1)(A).
---------------------------------------------------------------------------
In response to the proposed rule, multiple stakeholders suggest
that a good faith, reasonable search should include a separate search
for a Pre-1972 Sound Recording on YouTube.\72\ While A2IM, RIAA, and
Copyright Alliance recognize that YouTube may include unauthorized uses
of works,\73\ A2IM and RIAA note that ``all of the major record labels
and certain indie labels--which collectively account for the vast
majority of copyrighted sound recording--currently have licenses with
YouTube.'' \74\ A2IM, RIAA, and Copyright Alliance explain that YouTube
does in many cases indicate when a work has been licensed.\75\
Specifically, ``a user can access information that may be useful in
helping to identify whether content on YouTube is licensed or claimed
simply by clicking on the `Show More' option that appears below each
video and
[[Page 14247]]
referencing the `Licensed to YouTube by' field.'' \76\ They also
indicate that additional recordings may be commercially exploited on
YouTube with the authorization of the sound recording rights owner that
are unavailable on other services.\77\
---------------------------------------------------------------------------
\72\ A2IM & RIAA NPRM Comment at 4 (``YouTube must be added as
an additional, separate step in the list of categories users are
required to search.''); Copyright Alliance NPRM Comment at 2
(stating it is ``essential that the Copyright Office add a YouTube
search as an additional separate step.''); Recording Academy NPRM
Comment at 3 (``Academy strongly urges the Copyright Office to add a
search of YouTube as one additional step in the checklist in the
final rule.'').
\73\ A2IM & RIAA NPRM Comment at 5-6 (stating ``there certainly
are instances of unauthorized content on YouTube and other [user-
generated content] services''); Copyright Alliance NPRM Comment at 3
(stating ``that user-generated services may include both
unauthorized and authorized copies of works and that it may not
always be readily apparent to a user whether a work on such a
service is being commercially exploited by the authority of the
rights owner'').
\74\ A2IM & RIAA NPRM Comment at 5.
\75\ Id.; Copyright Alliance NPRM Comment at 3.
\76\ A2IM & RIAA NPRM Comment at 5.
\77\ Id. (``Including YouTube in the list of categories may also
help to address the Office's concern about obscuring the perspective
of smaller, less mainstream creators, . . . many of whom post their
content on YouTube.''); Copyright Alliance NPRM Comment at 3
(stating that ``in many instances . . . works, though being
commercially exploited on YouTube, would not be available on other
authorized services''). The Office's own searches bear this out. For
example, a search on YouTube for Elizabeth Cotten's 1959 recording
``Freight Train'' or Daniel Santos & Sonora Matancera's 1950
recording ``Carolina Cao'' reveals they are licensed to YouTube by
The Orchard, an entity that comments suggested ``does not make its
catalog publicly available.'' A2IM & RIAA Initial at 6; see
Elizabeth Cotten--Freight Train, YouTube (Jan. 27, 2014), https://www.youtube.com/watch?v=g8UN_6AUgCw; Daniel Santos & Sonora
Matancera--Carolina Cao ((copyright)1950), YouTube (Apr. 10, 2010),
https://www.youtube.com/watch?v=jXppKWTaw_I. Both ``Carolina Cao''
and the recording ``I'm Bound for Canaan Land'' discussed above
appear to be currently unavailable on services like Spotify.
---------------------------------------------------------------------------
Upon review, because the ``Show More'' option will indicate when a
work has been licensed ``by or under the authority of the rights
owner,'' and because YouTube is a predominant service for the
consumption of music in the United States,\78\ the final rule includes
YouTube as a separate search category for those uses that are
authorized by the sound recording rights owner. If a user locates the
use of a Pre-1972 Sound Recording and the ``Show More'' option
indicates that the work has been licensed, the user should consider the
sound recording being commercially exploited.\79\ If a user locates the
use of a Pre-1972 Sound Recording and the ``Show More'' option does not
indicate whether the work has been licensed, the user should continue
to progressively search in the other search categories until and if the
sound recording is found.\80\
---------------------------------------------------------------------------
\78\ YouTube, Wikipedia, https://en.wikipedia.org/wiki/YouTube
(last visited Mar. 29, 2019) (``As of February 2017, there were more
than 400 hours of content uploaded to YouTube each minute, and one
billion hours of content being watched on YouTube every day. As of
August 2018, the website is ranked as the second-most popular site
in the world . . .''). See also A2IM & RIAA NPRM Comment at 5
(stating that YouTube is ``the predominant user-generated service in
the U.S. and abroad''); Recording Academy NPRM Comment at 3 (stating
that in 2018, YouTube ``accounted for almost half of all on-demand
music streaming globally, more than every other streaming service
combined'').
\79\ For example, a search for the 1927 recording ``Blue Yodel
(T for Texas)'' by Jimmie Rodgers suggests that some results are
licensed by RCA/Legacy (T For Texas (Blue Yodel #1)--Jimmie Rodgers,
YouTube (Jan. 22, 2013), https://www.youtube.com/watch?v=X_3NC_kVmhk), while other results reveal no licensing
information after clicking ``Show More'' (Jimmie Rodgers--Blue Yodel
No 1 (T For Texas), YouTube (Jun. 17, 2006), https://www.youtube.com/watch?v=qEIBmGZxAhg). Similar results were returned
for other recordings, such as Patsy Montana's 1935 recording ``I
Want to Be a Cowboy's Sweetheart'' and Link Wray's 1958 ``Rumble.''
\80\ The Office considered that the ``Show More'' window can
include licensing information unrelated to the sound recording, such
as music publishing or performance licensing information. If a user
is unfamiliar with the licensor, she should feel empowered to
conduct additional diligence (such as a search engine search) to
confirm whether the entity listed is likely to represent sound
recording interests (e.g., a record label or distribution entity
like CD Baby, TuneCore, or The Orchard). While this commingling of
licensing information results is inelegant for purposes of this
rulemaking, the Office considered the risks of both false positive
and false negative results, and determined that the better course is
to ask prospective users to bear these additional and manageable
clearance activities, rather than neglect a source that many
comments pointed out is actively commercially exploiting relevant
recordings under authorization of the rights owner. The Office will
consider providing additional guidance on this point to aid users in
public education materials.
---------------------------------------------------------------------------
5. Searching With the SoundExchange ISRC Lookup Tool
Fifth, the rule asks the user to search for the Pre-1972 Sound
Recording using the free online ISRC lookup tool (located at https://isrc.soundexchange.com/#!/search) to search SoundExchange's database,
which contains information for more than 27 million sound recordings,
including Pre-1972 Sound Recordings.\81\ As detailed in the NPRM, an
overwhelming number of stakeholders representing rights owners
initially recommended inclusion of the SoundExchange ISRC lookup tool
as an important category of search,\82\ and urged inclusion as a
mandatory step in response to the proposed rule.\83\ As noted above,
Public Knowledge objects to including this lookup tool, alleging that
it is not itself a ``service[] offering a comprehensive set of sound
recordings for sale or streaming.'' \84\
---------------------------------------------------------------------------
\81\ NPRM at 1666-67; SoundExchange Initial at 2-3.
\82\ See A2IM & RIAA Initial at 5 (rights owners provide
metadata to SoundExchange ``for royalty collection, which is a form
of commercial exploitation''); Copyright Alliance Initial at 5
(``SoundExchange's ISRC search tool should be searched, as it
provides a vast library of information concerning sound recordings
that are submitted by rights owners and their authorized
representatives to SoundExchange for the purpose of collecting
royalties, which is a form of commercial exploitation'');
SoundExchange Initial at 2-14; FMC Reply at 6 (stating that
inclusion of a sound recording in this database ``is an unambiguous
indicator that a recording is being commercially exploited'');
Recording Academy Reply at 3 (``SoundExchange's ISRC Search tool is
indispensable to a good faith, reasonable search.'').
\83\ A2IM & RIAA NPRM Comment at 6; Copyright Alliance NPRM
Comment at 2.
\84\ Public Knowledge NPRM Comment at 2-3 & n.1; Public
Knowledge Reply at 10 (citing 17 U.S.C. 1401(c)(1)(A)(ii)).
---------------------------------------------------------------------------
The NPRM, and the above discussion of Public Knowledge's general
objections, explain in detail the propriety of including this step as
part of a reasonable search. Because the ISRC lookup tool allows users
to freely and easily search a deep trove of sound recording information
that rights owners themselves have submitted in connection with
commercializing those recordings--including on multiple streaming
services--the Office again concludes it is desirable and appropriate to
include this tool as a step in a sufficient good faith, reasonable
search. Requiring a prospective user to search the ISRC lookup tool is
thus expected to serve as a reasonable proxy for searches on a wide
array of services that offer a comprehensive set of sound recordings
for sale or streaming, and specifically, to address commenters'
concerns that it is otherwise difficult to determine exploitation by
non-interactive services that offer limited user search capability.\85\
---------------------------------------------------------------------------
\85\ See 17 U.S.C. 1401(c)(1)(A); (3). Compare Copyright
Alliance Reply at 2-3; FMC Reply at 4; and Recording Academy Reply
at 3 (expressing concerns related to rights owner interests) with
EFF Initial at 4 and Public Knowledge Initial at 2 (expressing
concerns related to user perspectives).
---------------------------------------------------------------------------
Accordingly, the final rule includes the ISRC lookup tool as a
mandatory step.
6. Searching Sellers of Physical Product
Sixth, a user should search for the Pre-1972 Sound Recording on at
least one major seller of physical product, namely Amazon.com, and if
the user reasonably believes that the sound recording is of a niche
genre such as classical music (including opera) or jazz, one smaller
online music store offering recordings in that niche whose repertoires
are searchable online, namely: ArkivJazz, ArkivMusic (classical),
Classical Archives, or Presto (classical).\86\ The Office invited
public comment on whether there are additional genres that similarly
warrant searching another online music service.\87\ In response, A2IM
and RIAA stated they ``are not aware of specific online music services
or other sources that users could search to find recordings in other
niche genres, such as blues and gospel, that are not available in the
services already identified [in the proposed rule].'' \88\ Accordingly,
the final rule adopts this aspect of the proposed rule without
substantive change.
---------------------------------------------------------------------------
\86\ NPRM at 1667.
\87\ Id.
\88\ A2IM & RIAA NPRM Comment at 4.
---------------------------------------------------------------------------
Public Knowledge particularly objects to this search step,
contending that the
[[Page 14248]]
statute's use of the word ``services'' is ``plainly a proxy for digital
outlets.'' \89\ In support, it references the definition of ``service''
in section 115(e)(29) to claim that searches under section 1401(c)
should be limited to outlets ``transmit[ting] music to customers in
some electronic form as opposed to providing a market for physical
copies.'' \90\ The Office does not find this to be the better
interpretation of the statute. Section 1401(c) expressly contemplates
searches of multiple services, including those offering sound
recordings ``for sale'' \91\ in addition to streaming. While the Office
agrees that the term ``services'' suggests a focus on online sources,
as opposed to physical storefronts, it would be improper to ignore
evidence of commercial exploitation through sales of physical
product.\92\ The plain language of the statute is not qualified ``for
digital sale'' or ``digital commercial exploitation.'' Indeed, section
1401(c) does not include the word ``digital'' at all. Nor does
legislative history suggest that the section 1401(c) exception is
conditioned upon whether there is ``digital'' commercial exploitation
of Pre-1972 Sound Recordings.\93\ Given this background, it would be
odd to read the word ``digital'' into a statutory chapter concerned
with recordings that predate the digital age. Further, the definition
of ``services'' referenced by Public Knowledge is expressly limited to
section 115 and does not apply to section 1401.\94\ Finally, assuming
arguendo that ``services'' is indeed a proxy for ``digital outlet,'' it
is not clear why Amazon.com, potentially the largest e-commerce company
in the world, would not be considered a ``digital outlet.'' \95\
---------------------------------------------------------------------------
\89\ Public Knowledge NPRM Comment at 3 n.1.
\90\ Id. (citing Orrin G. Hatch-Bob Goodlatte Music
Modernization Act, Pub. L. 115-264, 132 Stat. 3676, 3721-22
(codified at 17 U.S.C. 115(e)(29) (2018)).
\91\ 17 U.S.C. 1401(c)(1)(A)(ii); see id. at 1401(c)(3)(A)
(directing the Register to issue regulations identifying ``services
offering a comprehensive set of sound recordings for sale or
streaming'' to be searched).
\92\ See Hugh McIntyre, Report: Physical Albums Sell
Significantly Better Than Digital Ones, Forbes (Mar. 28, 2018),
https://www.forbes.com/sites/hughmcintyre/2018/03/28/physical-albums-sell-significantly-better-than-digital-ones-even-today (``All
forms of physical purchases added up to $1.5 billion in the U.S.
last year. CD sales experienced a big hit, losing 10 million sales
from the year prior, though at 87.6 million copies moved, they still
performed better than their digital counterparts. As has been the
case for several years now, vinyl remains the one format of music
that must be bought outright that continues to grow by any
noticeable measure . . . .'').
\93\ See Conf. Rep. at 25 (``Subsection (c) creates a process
for requesting from rights owners, at their sole discretion,
permission to engage in noncommercial uses of pre-1972 sound
recordings that are not otherwise commercially exploited.'').
\94\ 17 U.S.C. 115(e) (limiting definitions to section 115).
Congress's intent to have separate definitions for sections 115 and
1401 is further evidenced by those sections having different
definitions of the identical term ``covered activity.'' Compare 17
U.S.C. 115(e)(7) with id. at 1401(l).
\95\ See Wikipedia, https://en.wikipedia.org/wiki/List_of_largest_internet_companies (listing Amazon.com at #1 on a
list of ``largest internet companies'').
---------------------------------------------------------------------------
7. Searches for Ethnographic Pre-1972 Sound Recordings
The NPRM reflected concerns regarding the noncommercial use of
ethnographic Pre-1972 Sound Recordings raised by the National Congress
of American Indians (``NCAI''), the oldest and largest national
organization made up of Alaska Native and American Indian tribal
government, and Professors Trevor Reed, Jane Anderson, and Robin Gray,
who have worked on legal and cultural issues surrounding pre-1972
ethnographic sound recordings. NCAI asserted that ``[t]he lack of
complete and accurate information typically available on copyright
interests in ethnographic sound recordings, and the cultural
sensitivity of the contents of many ethnographic sound recording
collections, merits consideration of special opt-out rules carefully
tailored to the specific needs of Native American communities.'' \96\
As NCAI explains further:
---------------------------------------------------------------------------
\96\ NCAI Reply at 1.
Often such recordings are the result of anthropological or
ethnographical gatherings of sound recordings, frequently capturing
ceremonial or otherwise culturally significant songs. Further, due
to the circumstances of how these recordings were conducted--often
without any documentation of the free and prior informed consent of
the tribal practitioners/performers--tribes today are unaware of
much of the content that they potentially hold valid copyright
claims over.\97\
---------------------------------------------------------------------------
\97\ Id.
Similarly, Professors Reed, Anderson, and Gray explain that
``scholars have extensively documented the inequalities and ethical
dilemmas surrounding early ethnographic field recording,'' claiming
that ``ownership interests in pre-1972 ethnographic sound recordings
are presumed to have vested in and remained with the performers who
recorded them under the common-law rule,'' but that unrelated holding
institutions (e.g., libraries, archives, museums, and universities)
typically possess the master recordings.\98\ Those professors suggest
that regulations governing the noncommercial use exception under
section 1401(c) ``must be carefully tailored to the informational
disadvantages Native American tribes and tribal members face as they
attempt to locate and protect their rights to ethnographic sound
recordings.'' \99\
---------------------------------------------------------------------------
\98\ Reed, Anderson & Gray Reply at 2.
\99\ Id. at 3.
---------------------------------------------------------------------------
The Copyright Office is sensitive to the need to ensure that
regulations governing the noncommercial use of Pre-1972 Sound
Recordings do not adversely impact Alaska Native and American Indian
tribes or communities. The Office previously noted that ethnographic
field recordings ``are an enormous source of cultural and historical
information, and come with their own unique copyright issues,'' \100\
and that ``librarians and archivists who deal with ethnographic
materials must abide by the cultural and religious norms of those whose
voices and stories are on the recordings.'' \101\ The Office
appreciates that the public ownership record for these recordings may
be less developed and less likely to be indexed, and that as a result,
searches that are otherwise reasonable for a prospective user may fail
to identify that a specific ethnographic recording is being
commercially exploited by the rights owner.
---------------------------------------------------------------------------
\100\ Pre-1972 Sound Recordings Report at 52.
\101\ Id. at 61 (citing Rob Bamberger and Sam Brylawski, Nat'l
Recording Preservation Board of the Library of Congress, The State
of Recorded Sound Preservation in the United States: A National
Legacy at Risk in the Digital Age 19 (2010)).
---------------------------------------------------------------------------
Accordingly, for ethnographic Pre-1972 Sound Recordings of Alaska
Native or American Indian tribes or communities, the proposed rule
asked the user to contact the Alaska Native or Native American tribe
and, if known to the user, the relevant holding institution to aid in
determining whether the sound recording is being commercially
exploited.\102\ Specifically, the proposed rule asked the user to make
contact by using contact information known to the user if applicable,
and also by using the contact information provided in NCAI's tribal
directory.\103\ If no information is listed or the tribe is unknown to
the user, the user would contact NCAI itself.
---------------------------------------------------------------------------
\102\ See Reed, Anderson & Gray Reply at 2 (suggesting that the
marketplace lacks ``inaccurate and unreliable information about
these sound recordings,'' necessitating tribal consultation). For
example, the professors' comment suggests that making contact may be
valuable to provide title, artist, or other information relevant to
a particular recording.
\103\ See Tribal Directory, Nat'l Cong. of Am. Indians, http://www.ncai.org/tribal-directory (last visited Mar. 29, 2019)
(providing searchable directory by tribe name, area, and keyword).
---------------------------------------------------------------------------
No commenter opposed this extra search step for ethnographic sound
recordings. Indeed, FMC expressed its ``wholehearted[] support [of] the
extra step in the search requirement for
[[Page 14249]]
ethnographic sound recordings.'' \104\ Regarding the proposed
regulatory language, NCAI suggests that the final rule define ``Alaska
Native or American Indian tribes,'' ``at a minimum,'' to those that are
``federally recognized,'' and to strike the word ``communities'' from
any such definition.\105\ NCAI also asks that for users who do not know
the contact information for a tribe, the final rule direct users to the
U.S. Department of the Interior's list of federally recognized tribes,
which is published annually in the Federal Register,\106\ and the
Department of the Interior's Bureau of Indian Affairs' tribal leaders
directory, which provides contact information for each federally
recognized tribe.'' \107\
---------------------------------------------------------------------------
\104\ FMC NPRM Comment at 2.
\105\ NCAI NPRM Comment at 3-4.
\106\ Id. at 4; see, e.g., 84 FR 1200-05 (Feb. 1, 2019).
\107\ NCAI NPRM Comment at 4; Tribal Leaders Directory, U.S.
Dep't of the Interior, Indian Affairs, https://www.bia.gov/tribal-leaders-directory (last visited Mar. 29, 2019).
---------------------------------------------------------------------------
The Copyright Office appreciates that these issues are nuanced and
is committed to addressing them in a sensitive and thoughtful manner.
The Office must also be careful, however, not to exceed its regulatory
authority, by, for example, prohibiting the use of Pre-1972 Sound
Recordings of American Indian and Alaska Native tribes without the
relevant tribe's permission, preventing the recordings from entering
the public domain, declaring that tribal law governs Pre-1972 Sound
Recordings of American Indian and Alaska Native tribes, or imposing a
fee requirement on users to pay tribes for conducting commercial
exploitation searches.\108\ The Office notes, however, that its
inability to issue regulations beyond the scope of this rulemaking does
not affect the ability of American Indian and Alaska Native tribes to
raise such issues before the courts or Congress. The Office further
notes that tribes themselves may choose to impose fees on users to
offset any administrative burden.
---------------------------------------------------------------------------
\108\ Compare NCAI NPRM Comment at 4-6.
---------------------------------------------------------------------------
Within the regulatory authority granted to the Office, the Office
has adjusted the final rule to reflect NCAI's comments. The final rule
defines ``Alaska Native or American Indian tribes'' as those federally
recognized by being included in the U.S. Department of the Interior's
list of federally recognized tribes. If the user does not locate the
relevant sound recording in the Copyright Office's database of Pre-1972
Schedules or other search categories, the final rule asks the user to
contact the Alaska Native or Native American tribe and, if known to the
user, the relevant holding institution to aid in determining whether
the sound recording is being commercially exploited. Specifically, the
final rule asks the user to make contact by using contact information
known to the user, if applicable, and also by using the contact
information provided in the U.S. Department of the Interior's Bureau of
Indian Affairs' tribal leaders directory.
The Office believes that this search step is a reasonable burden to
ask prospective users of such expressions of cultural heritage in light
of the complicated history of some of these sound recordings. The
Office also expects that the notification requirement will prove useful
to rights owners who wish to exercise discretion to opt out of the
noncommercial use by filing notice in the Copyright Office.\109\
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\109\ See 17 U.S.C. 1401(c)(1)(C).
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ii. Sources Not Required To Be Searched
The Office's proposed rule did not include additional search steps
or services proposed by some commenters at the notice of inquiry stage,
specifically:
Additional comprehensive streaming services beyond the one
the user elects to search from the proposed rule's list of services
Terrestrial or internet radio services, including non-
interactive services subject to the section 114 license
The to-be-created Mechanical Licensing Collective database
\110\
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\110\ The Office is open to revisiting the MLC database once it
is up and running.
---------------------------------------------------------------------------
Dogstar Radio, which offers searchable playlists from
Sirius XM
Online databases of U.S. performing rights organizations
Other comprehensive databases offered by private actors
(e.g., Songfile, Rumblefish, Songdex, Cuetrak, Crunch Digital)
IMDB.com
Video streaming services
The SXWorks NOI Tools
Music distribution services (e.g., CDBaby, Tunecore)
Predominantly foreign music services
SoundCloud or Bandcamp
Niche streaming services (e.g., Idagio, Primephonic) \111\
---------------------------------------------------------------------------
\111\ NPRM at 1668.
The Office reiterates that the steps in the final rule, including
the requirement to search major search engines, may likely reveal some
of the very same information contained in the above services, and
therefore should result in identifying a vast amount of the Pre-1972
Sound Recordings being commercially exploited at the time searches are
conducted. At the same time, the Office recognizes that these locations
may provide relevant information to users wishing to obtain additional
information, including further information about recordings that are
being commercially exploited in order to facilitate permissive
transactions. A2IM and RIAA urge the Office to list ``all of the non-
mandatory sources in one place'' as additional, optional sources that
users may wish to search.\112\ While the Office does not believe that
regulatory text is the best place for this information to reside, the
Office will include these sources in other publications, such as its
educational resources.
---------------------------------------------------------------------------
\112\ A2IM & RIAA NPRM Comment at 6.
---------------------------------------------------------------------------
iii. Search Terms and Strategy
1. General Rule
The proposed rule asked users to search on the title and featured
artist(s) of the Pre-1972 Sound Recording in the various search
categories.\113\ If the user knows any of the following attributes of
the Pre-1972 Sound Recording, and the source has the capability for the
user to search such attributes, the user should also search: Alternate
artist name(s), alternate title(s), album title, and the International
Standard Recording Code (``ISRC'').\114\ The user was encouraged to
optionally search any other attributes known to the user of the sound
recording, such as label or version.\115\ The Office determined that
narrowing a search by these attributes may inform a user's good faith,
reasonable determination whether or not a Pre-1972 Sound Recording is
being commercially exploited.\116\
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\113\ NPRM at 1669.
\114\ Id.
\115\ Id.
\116\ Id.; see EFF Initial at 3.
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The NPRM, responding to a relatively general statement by
IMSLP.org, invited public comment on whether the final rule should
address whether users should be able to use officially-supported APIs
to search and locate a Pre-1972 Sound Recording on a streaming
service.\117\ EFF maintains that the final rule ``should promote and
encourage the development of third-party tools and services that can
assist in performing a reasonable search for commercial exploitation,''
and clarify that ``searches of the various databases listed in the
proposed rule can be conducted through any computer-accessible or
human-accessible interface.'' \118\ Copyright Alliance, A2IM, and RIAA
assert that the final rule does not need to expressly include the use
of APIs.\119\ Copyright Alliance
[[Page 14250]]
also expresses concern ``that such search capabilities will enable bulk
submissions of NNUs, placing a burden on rights owners comparable to
the burden placed on individual songwriters and music publishers when
reviewing bulk Notices of Intention to Obtain Compulsory License under
17 U.S.C. 115.'' \120\ FMC also expressed concern that searches with
APIs may ``result in undesirable false negatives'' that may go
unnoticed if searches are automated.\121\ While not commenting on
IMSLP.org's statement, the Internet Archive had previously submitted a
comment drawing on its own experience ``automating the process of
searching for commercial availability at scale,'' noting it was ``more
complex than we anticipated,'' but that ``human searchers would
generally not make the same sorts of mistakes'' that necessitated
refinements in Internet Archive's code.\122\ Given these concerns
regarding the use of APIs or other automated searching, the final rule
does not expressly permit the use of APIs in conducting a good faith,
reasonable search.
---------------------------------------------------------------------------
\117\ NPRM at 1666.
\118\ EFF NPRM Comment at 2.
\119\ A2IM & RIAA NPRM Comment at 3 (stating that distinctions
between a user ``conduct[ing] an otherwise sufficient search of a
service like Spotify using an API that is otherwise voluntarily
provided by the service, rather than some other interface to the
service (e.g., a desktop or mobile user interface), . . . [do] not
seem worth mentioning in regulations''); Copyright Alliance NPRM
Comment at 2 (``We see no reason why the rule needs to encourage
APIs or other specific means for searching.'').
\120\ Copyright Alliance NPRM Comment at 2.
\121\ FMC NPRM Comment at 2 (giving example of using the Sonos
application to search Apple Music and Spotify for Ethel Merman's
recording of ``Everything's Coming Up Roses,'' with the incorrect
song being located on Spotify).
\122\ Internet Archive Initial at 1.
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As discussed above, at EFF's suggestion, the Office amended the
rule to clarify the scope of searching via search engines.\123\ The
final rule is otherwise retained without substantive change.
---------------------------------------------------------------------------
\123\ EFF NPRM Comment at 2.
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2. Classical Music Sound Recordings
Because classical music sound recordings require more information
to sufficiently identify the sound recording, the proposed rule
required the user to search on additional attributes for those types of
sound recordings.\124\ Under the proposed rule, a user wishing to
determine whether a Pre-1972 Sound Recording of classical music is
being commercially exploited must search on the composer and opus
(i.e., the work's title) and the conductor, featured performers, or
ensemble, depending upon the work (i.e., the work's ``featured
artist'').\125\
---------------------------------------------------------------------------
\124\ NPRM at 1669.
\125\ Id. at 1669, 1676; see also Anastasia Tsioulcas, Why Can't
Streaming Services Get Classical Music Right?, NPR The Record (June
4, 2015, 10:50 a.m.), https://www.npr.org/sections/therecord/2015/06/04/411963624/why-cant-streaming-services-get-classical-music-right (last visited Mar. 29, 2019) (describing the metadata
conundrum in classical music and difficulty searching streaming
services).
---------------------------------------------------------------------------
The Office invited public comment on whether other genres of sound
recordings require searching additional terms to identify the sound
recording sufficiently. A2IM and RIAA confirm that they are not aware
of any such additional genres.\126\ FMC suggested ``adding film, TV,
and theater soundtracks . . . as the quality of metadata implementation
is sometimes inconsistent, if generally improving,'' \127\ but did not
provide examples where the proposed search terms would fail to identify
a recording being commercially exploited, or suggest specific search
criteria to address soundtrack uses. Without more information, the
Office declines to adjust the general criteria and the final rule
adopts this aspect of the proposed rule without substantive change. If
evidence develops that the adopted search criteria are insufficient,
the Office will consider subsequent adjustments to the rule.
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\126\ A2IM & RIAA NPRM Comment at 4.
\127\ FMC NPRM Comment at 2.
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3. Remastered Pre-1972 Sound Recordings
In the NPRM, the Office suggested that should the user find a
``remastered'' version of a Pre-1972 Sound Recording through searching
in any of the categories listed in the proposed rule, such a finding
likely evidences commercial exploitation of the Pre-1972 Sound
Recording.\128\ The Office noted that ``remastering'' a sound recording
may consist of mechanical contributions or contributions that are too
minimal to be copyrightable, and that it would thus be prudent for a
user to consider a 1948 track that was remastered and reissued in 2015
to qualify as a Pre-1972 Sound Recording.\129\
---------------------------------------------------------------------------
\128\ NPRM at 1669.
\129\ Id. (citing U.S. Copyright Office, Compendium of U.S.
Copyright Office Practices sec. 803.9(F)(3) (3d ed. 2017)
(``Compendium (Third)'')).
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A2IM and RIAA agree that finding a ``remastered'' version likely
evidences commercial exploitation of the Pre-1972 Sound Recording, and
ask for the Office's regulations to ``make this a clear presumption.''
\130\ The Office has provided clarifying language in its regulatory
definition of ``Pre-1972 Sound Recording.''
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\130\ A2IM & RIAA NPRM Comment at 12.
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iv. Other Considerations
1. Searches for Foreign Pre-1972 Sound Recordings
Stakeholders questioned whether the section 1401(c) exception
applies to foreign Pre-1972 Sound Recordings (i.e., Pre-1972 Sound
Recordings originating outside the United States). As detailed in the
NPRM, certain foreign Pre-1972 Sound Recordings have been granted
copyright protection in the United States through the Uruguay Round
Agreements Act, and the MMA does not reference foreign sound recordings
specifically.\131\ Noting conflicting comments, the NPRM stated
``[w]hether the noncommercial use exception under section 1401(c) can
immunize content actionable under title 17 for restored works that are
foreign Pre-1972 Sound Recordings may ultimately be a matter for the
courts to resolve.'' \132\ In response, A2IM, RIAA, and Copyright
Alliance contend the state of the law is clear, and that because
foreign sound recordings restored under section 104A ``enjoy full
federal copyright protection,'' they are not subject to the section
1401(c) exception for noncommercial use.\133\ They urge the Office to
communicate to prospective users ``(1) the fact that certain pre-72
sound recordings may be protected by copyright under Section 104(a) and
thus not subject to the limitation in 1401(c), and (2) the existence of
the Copyright Office's records of [notices of intent to enforce] for
restored works, which would show whether a particular pre-72 sound
recording is a restored work under Section 104(a).'' \134\
---------------------------------------------------------------------------
\131\ NPRM at 1670.
\132\ Id.
\133\ A2IM & RIAA NPRM Comment at 12 (``To the extent that a
sound recording meets the requirements to be covered by Section
104(A), those recordings enjoy full federal copyright protection,
not the sui generis intellectual property right created by Section
1401. Accordingly, they are not subject to use pursuant to the
Section 1401(c) exception.''); Copyright Alliance NPRM Comment at 7
(``We disagree that the applicability of 17 U.S.C. 1401(c) to
foreign pre-72 sound recordings restored under Section 104(a) is
uncertain. Sound recordings restored under Section 104(a) enjoy full
federal copyright protection.'').
\134\ See A2IM & RIAA NPRM Comment at 12. Users may locate
notices of intent to enforce by searching the Office's public
catalog.
---------------------------------------------------------------------------
As the NPRM noted, section 1401 provides sui generis protection
running parallel to any copyright protection afforded to foreign Pre-
1972 Sound Recordings under section 104A.\135\ While the Office
appreciates A2IM, RIAA, and Copyright Alliance's perspective, this
rulemaking does not require the Office to interpret whether
[[Page 14251]]
the noncommercial use exception is or is not applicable to these
restored foreign sound recordings. Regardless, because protection and
enforcement for foreign restored rights is fact-intensive--implicating
the specific country, date and location of publication, duration of
term in both the United States and the country, and compliance with
formalities--the Office reiterates that prospective users of foreign
Pre-1972 Sound Recordings should proceed cautiously before relying on
the section 1401(c) exception.\136\ The Office will provide general
guidance in its NNU form instructions regarding the noncommercial use
exception and the parallel protection afforded to certain foreign sound
recordings, including how to search the Office's records to determine
whether a particular Pre-72 Sound Recording is a restored work under
section 104A.
---------------------------------------------------------------------------
\135\ NPRM at 1670; see Conf. Rep. at 15; see also IFPI Initial
at 1-2.
\136\ Conversely, the MMA does not address whether restored
sound recordings that were given protection under the URAA, then
subsequently fell out of term in their home countries would receive
additional sui generis protection under section 1401(c). See also 84
FR 9053, 9060 (Mar. 13, 2019).
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2. Reliance on Third-Party Searches
The proposed rule did not permit a user to rely on a search
conducted by a third party, unless the third party conducted the search
as the user's agent.\137\ As explained in the NPRM, reliance upon a
third-party search is unlikely to be reasonable because that party may
have conducted an inadequate search, or the Pre-1972 Sound Recording
may become subject to commercial exploitation after a third party has
conducted a search, but before another user desires to use the same
sound recording for a noncommercial use under section 1401(c).\138\ In
addition, a user must certify that she conducted a good faith,
reasonable search when submitting an NNU, and a user cannot certify the
actions of an unrelated third party.\139\
---------------------------------------------------------------------------
\137\ NPRM at 1670.
\138\ Id.; see A2IM & RIAA Reply at 9.
\139\ NPRM at 1670.
---------------------------------------------------------------------------
The Office received one comment from the Copyright Alliance,
agreeing with the decision not to permit a user to rely on third-party
searches.\140\ The final rule adopts this aspect of the proposed rule
without substantive change.
---------------------------------------------------------------------------
\140\ Copyright Alliance NPRM Comment at 1.
---------------------------------------------------------------------------
3. Timing of Completing a Search Before Filing an NNU
To ensure that search results are not stale, the rule requires the
user (or the user's agent) to conduct a search under section 1401(c) no
later than 90 days before submitting an NNU with the Office.\141\ The
Office did not receive any comments regarding this proposed 90-day
period, and so the final rule adopts this aspect of the proposed rule
without substantive change.
---------------------------------------------------------------------------
\141\ See NPRM at 1670.
---------------------------------------------------------------------------
B. Notices of Noncommercial Use (NNUs)
i. Form and Content of NNUs
1. Overview of Final Rule
The final rule largely adopts the provisions of the proposed rule
regarding which information must be provided in NNUs, with some
adjustments in response to public comment.
Commenters initially disagreed on whether a user should be required
to document her search, such as by submitting screen shots from
searched websites.\142\ Under the proposed rule, users would not have
to submit documentation of searches to the Copyright Office as part of
conducting a good faith, reasonable search.\143\ In response, A2IM and
RIAA request that users be required to ``save evidence of their
searches for three years from the date of their first use of the work,
in much the way that the Internal Revenue Service requires taxpayers to
save documentation that supports a tax return for at least three
years.''\144\ Copyright Alliance suggests that users be required to
provide a ``list of the search terms that they used or other evidence
of their searches.''\145\ Although the final rule does not require
users to submit documentation of their searches or provide the search
terms used, it adds regulatory language encouraging users to keep
records of their searches for at least three years in case of dispute
(i.e., if challenged, users may need to provide evidence that they in
fact conducted a good faith, reasonable search).\146\
---------------------------------------------------------------------------
\142\ Compare Copyright Alliance Initial at 6 (user should be
required to document the search); IMSLP.ORG Reply at 1 (same); A2IM
& RIAA Initial at 21 (same); with Public Knowledge Reply at 14
(section 1401(c) does not require documentation of the search for
the safe harbor to apply); EFF Reply at 4 (same); Wikimedia
Foundation Reply at 3 (any documentation only becomes relevant if
the adequacy of the search comes into dispute). See also FMC Reply
at 5 (requiring a user to upload screenshots is an ``inelegant
solution'').
\143\ NPRM at 1672.
\144\ A2IM & RIAA NPRM Comment at 7.
\145\ Copyright Alliance NPRM Comment at 4.
\146\ See id. (``[T]he Copyright Office should provide clear
language to users that if a use is subsequently challenged in court,
users would need to demonstrate they engaged in a good faith,
reasonable search, so they should document their search and retain
that documentation.'').
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Copyright Alliance, A2IM, and RIAA also request that users be
required to list ``the current or last-known rights owner,'' such as a
record label, to the extent that the information is known or can be
reasonably discovered by the user.\147\ Copyright Alliance suggests
that such a requirement ``would greatly assist rights owners--
particularly those with large catalogs--in being able to determine when
one of their recordings is the subject of an NNU,'' and that ``merely
listing track title and artist on an NNU will in some cases provide
inadequate notice, since some artists may have recorded the same track
for different record labels.'' \148\ A2IM and RIAA contend that ``where
a user is accessing a pre-72 sound recording from an old 33 or 78 rpm
record and that record has a label affixed to it, the user should have
no trouble identifying the name of the record label that released that
recording and including that information in an NNU.'' \149\ The Office
agrees, noting that in cases where a user possesses a physical copy of
the work, she may have ready access to record label and other
information that would improve the public record regarding these
recordings if included on the NNU (and decrease potential false
positive opt-outs by owners of different performances or versions).
Accordingly, the final rule requires the user to provide the current or
last-known rights owner (e.g., record label), if known.
---------------------------------------------------------------------------
\147\ A2IM & RIAA NPRM Comment at 6; Copyright Alliance NPRM
Comment at 4; see also FMC NPRM Comment at 3 (``It would be very
helpful for any available information about the label to be
included--this would help avoid false negatives and false positives
because of the frequency of re-recordings that artists often made
over the course of their careers for multiple rightsholders.'').
\148\ Copyright Alliance NPRM Comment at 4; see also A2IM & RIAA
NPRM Comment at 6 (``Merely listing the track title and artist,
where additional information is readily available to the user, would
impose an undue and unsustainable burden on rights owners, who would
be forced to research each title covered by an NNU to determine if
it belonged to them.'').
\149\ A2IM & RIAA NPRM Comment at 6.
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In addition, the proposed rule stated that an NNU may not include a
proposed use for more than one Pre-1972 Sound Recording unless all of
the sound recordings include the same featured artist and were released
on the same pre-1972 album or other unit of publication.\150\ Copyright
Alliance, A2IM, and RIAA request that users should not be permitted to
include all sound recordings released on a ``greatest hits'' or
compilation album, which may include recordings owned by multiple
rights owners if the featured artist switched labels throughout her
[[Page 14252]]
career.\151\ The NPRM recognized that where multiple rights owners own
the various Pre-1972 Sound Recordings listed in one NNU, it may be
difficult for rights owners as well as prospective users to evaluate
opt-outs to proposed noncommercial uses.\152\ Accordingly, the final
rule states that an NNU may not include a proposed use for more than
one Pre-1972 Sound Recording unless all of the sound recordings include
the same featured artist and were released on the same pre-1972 album
or unit of publication, and in the case of ``greatest hits'' or
compilation albums, all of the listed sound recordings on the NNU share
the same record label or other rights owner information.\153\
---------------------------------------------------------------------------
\150\ NPRM at 1671. A ``unit of publication'' exists where
multiple works are physically bundled or packaged together and first
published as an integrated unit. U.S. Copyright Office, Circular 34:
Multiple Works, https://www.copyright.gov/circs/.
\151\ See A2IM & RIAA NPRM Comment at 7; Copyright Alliance NPRM
Comment at 4.
\152\ NPRM at 1671.
\153\ This requirement is similar to the requirement when
registering multiple works under the unit of publication option. See
U.S. Copyright Office, Circular 34: Multiple Works, https://www.copyright.gov/circs/ (``The copyright claimant for all of the
works claimed in the unit is the same.'').
---------------------------------------------------------------------------
Next, Copyright Alliance, A2IM, and RIAA request that the user must
specify the start and end dates of the proposed use, not merely ``when
the use will occur.'' \154\ The final rule adopts this approach.
---------------------------------------------------------------------------
\154\ A2IM & RIAA NPRM Comment at 7; Copyright Alliance NPRM
Comment at 5; see NPRM at 1671.
---------------------------------------------------------------------------
In sum, the final rule requires the user to provide:
(1) The user's full legal name, and whether the user is an
individual person or corporate entity, including whether the entity
is a tax-exempt organization as defined under the Internal Revenue
Code;
(2) The title and featured artist(s) of the Pre-1972 Sound
Recording desiring to be used; \155\
---------------------------------------------------------------------------
\155\ As noted above, classical music metadata raises unique
issues. For such proposed uses, the prospective user should include
information that is similar to the attributes the user is asked to
search upon for title and featured artist(s) before claiming the
statutory safe harbor.
---------------------------------------------------------------------------
(3) If known, the current or last-known rights owner (e.g.,
record label), alternate artist name(s), alternate title(s), album
title, and ISRC; and
(4) A description of the proposed noncommercial use, including a
summary of the project and its purpose, how the Pre-1972 Sound
Recording will be used in the project, the start and end dates of
the use, and where the proposed use will occur (i.e., the U.S.-based
territory of the use).
Finally, the rule substantively adopts the provision of the
proposed rule requiring the individual submitting the NNU to certify
that she has appropriate authority to submit the NNU, that the user
desiring to make noncommercial use of the Pre-1972 Sound Recording (or
the user's agent) conducted a good faith, reasonable search within the
last 90 days without finding commercial exploitation of the sound
recording, and that all information submitted to the Office in the NNU
is true, accurate, and complete to the best of the individual's
knowledge, information, and belief, and is made in good faith.\156\
---------------------------------------------------------------------------
\156\ NPRM at 1671-72.
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Because the specific steps under the final rule are sufficient, but
not necessary, to demonstrate that a user has conducted a good faith,
reasonable search under the section 1401(c) exception,\157\ the NNU
certification alternatively allows the user to certify that she
conducted a good faith, reasonable search for, but did not find, the
sound recording in the Copyright Office's database of indexed schedules
listing right owners' Pre-1972 Sound Recordings, or on services
offering a comprehensive set of sound recordings for sale or
streaming.\158\
---------------------------------------------------------------------------
\157\ 17 U.S.C. 1401(c)(4)(B) (``Taking the specific, reasonable
steps identified by the Register of Copyrights . . . shall be
sufficient, but not necessary, for a filer to satisfy the
requirement to conduct a good faith, reasonable search . . . '').
\158\ See Public Knowledge NPRM Comment at 9 (advocating for
same).
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2. Determining Whether a Use Is Noncommercial
The section 1401(c) exception applies only to noncommercial uses of
Pre-1972 Sound Recordings.\159\ Section 1401(c) does not define
``noncommercial,'' and although other parts of title 17 refer to
``commercial'' or ``non-commercial'' uses, nowhere in the statute are
they defined terms.\160\
---------------------------------------------------------------------------
\159\ 17 U.S.C. 1401(c)(1); Conf. Rep. at 25 (``Subsection (c)
applies only to noncommercial uses.'').
\160\ See, e.g., 17 U.S.C. 107(1); 108(a)(1), (c), (h)(2)(A);
109(a), (b)(1)(A); 110(4), (8); 506(a); see also Kernochan Center
Reply at 2-3 (discussing various statutory provisions); 37 CFR
201.40(b)(1)(i)(B) (2018) (regulatory exception for certain uses of
motion pictures in noncommercial videos). But cf. 17 U.S.C.
901(a)(5) (defining ``commercially exploit'' with respect to mask
works).
---------------------------------------------------------------------------
Stakeholders initially disagreed on whether or to what extent the
Office should provide guidelines on what constitutes ``noncommercial''
use.\161\ In the NPRM, the Office acknowledged that defining
``noncommercial'' in relation to section 1401 is complex,\162\ and
sought to identify certain touchstones through its public education
functions that could help filers and other interested parties evaluate
whether a use is noncommercial for purposes of this exception.\163\ The
NPRM further noted that ``it is not the Office's intention to constrain
resolution of gray areas or edge cases through private negotiation or,
if necessary, the courts.'' \164\
---------------------------------------------------------------------------
\161\ Compare A2IM & RIAA Reply at 6 (``[I]t is vitally
important for both users and rights owners that the Office issue
guidelines to help users recognize appropriate uses of section
1401(c) and help rights owners assess the NNUs that get filed.''),
and FMC Reply at 6 (noting prevalence of incorrect understanding of
copyright published by users in connection with user-uploaded
content on YouTube), with Kernochan Center Reply at 3-4 (providing a
run-down of key court opinions with ``differing conclusions as to
what constitutes commercial versus noncommercial use''), and
Wikimedia Foundation Reply at 3 (cautioning against creating
``complex presumptions'' for specific anticipated fact patterns, and
suggesting that terms like ``noncommercial'' are defined in fact-
specific contexts that are still being explored by courts).
\162\ NPRM at 1672.
\163\ Id. at 1672-73.
\164\ Id. at 1672.
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In response, commenters provided additional insights regarding
proposed considerations to be included in the Office's guidelines.\165\
For example, the Organization for Transformative Works (``OTW'') noted
that the ``guidelines will be extremely useful to individuals and small
businesses that don't have familiarity with copyright law or the
resources to reach out to someone who does,'' while urging the Office
to stress the approach, as articulated in the NPRM, that such
guidelines are informational in nature and not hard-and-fast
rules.\166\ OTW recommended that the Office ``emphasize that the fact
that a creator makes money from their art or craft does not necessarily
make any particular use commercial,'' and disagreed that ``measurable
benefit'' is a workable standard when considering educational
uses.\167\ In addition, OTW would take the opposite approach of A2IM,
RIAA, and FMC, who each strongly advocated that a work being
commercially exploited by a platform (e.g., though advertising) must be
considered a commercial use of that recording, even if the work was
uploaded by a user who does not herself ``monetize'' or otherwise
economically benefit from the upload.\168\ EFF further suggests that
the Office note that while posting on the ``open, accessible internet''
is not a ``private home use,''
[[Page 14253]]
neither is it ``presumptively commercial.'' \169\ The Office will
consider these comments as it develops a public circular or other
general materials to help filers and other interested parties in
evaluating whether a use is noncommercial for purposes of the section
1401(c) exception.
---------------------------------------------------------------------------
\165\ See, e.g., A2IM & RIAA NPRM Comment at 11-12; EFF NPRM
Comment at 3; FMC NPRM Comment at 3; OTW NPRM Comment at 2.
\166\ OTW NPRM Comment at 1.
\167\ Id. at 2-3.
\168\ See A2IM & RIAA NPRM Comment at 11-12 (asking for Office's
guidelines on noncommercial use to ``make clear that all publicly
accessible videos available on YouTube are considered commercial'');
FMC NPRM Comment at 3 (stating that ``if a use is not being
monetized by the uploader, it may indeed still be commercially
exploited by the platform on which it appears''). See also OTW NPRM
Comment at 3 (``The mere fact that a platform is making money from a
user's use should not be enough to make the use commercial.'').
\169\ EFF NPRM Comment at 3 (citation omitted).
---------------------------------------------------------------------------
ii. Filing of NNUs, Including Copyright Office Review
The final rule adopts the provisions of the proposed rule in
regards to the filing of NNUs and the Office's level of review. As with
similar types of filings made with the Office, the final rule states
that the Office does not review NNUs for legal sufficiency.\170\
Rather, the Office's review is limited to whether the formal and legal
procedural requirements established under the rule (including
completing the required information and payment of the proper filing
fee) have been met. For example, as noted in the NPRM, the Office's
indexing of an NNU thus does not mean the proposed use in the NNU is,
in fact, noncommercial.\171\ Users are therefore cautioned to review
and scrutinize NNUs to assure their legal sufficiency before submitting
them to the Office.
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\170\ See, e.g., 37 CFR 201.4(g); 201.17(c)(2); 201.18(g).
\171\ See A2IM & RIAA NPRM Comment at 7 (agreeing that the
Office's indexing of an NNU does not mean that the proposed use is
noncommercial); Copyright Alliance NPRM Comment at 5 (same). The
Office will include this caution on the NNU form and/or
instructions.
---------------------------------------------------------------------------
While the Office is adopting the proposed rule with respect to
examination, it also clarifies that it does intend to review and reject
``facially deficient'' NNUs as part of its examination process.\172\
The Office will review an NNU to confirm that the correct form has been
used, that all required information has been provided and is legible,
and that the NNU has been properly certified. Such review parallels the
Office's examination of documents pertaining to copyright before
recording them and making them part of the Office's public record.\173\
As stated in the final rule, the Office may reject an NNU that fails to
comply with the Office's requirements or instructions. This
clarification is expected to assuage rightsholders' concern regarding
expenditure of resources responding to facially deficient NNUs, and may
also mitigate concern regarding the proposed fee, as discussed
below.\174\
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\172\ See A2IM & RIAA NPRM Comment at 10-11 (expressing concerns
regarding facially deficient NNUs).
\173\ See generally U.S. Copyright Office, Circular 12:
Recordation of Transfers and Other Documents, https://www.copyright.gov/circs/circ12.pdf.
\174\ See A2IM & RIAA NPRM Comment at 10-11.
---------------------------------------------------------------------------
iii. Indexing NNUs Into the Copyright Office's Online Database
The final rule largely adopts the provisions of the proposed rule
regarding the indexing of NNUs, with some adjustments adopted in
response to public comment. Section 1401(c) requires NNUs to be
``indexed into the public records of the Copyright Office.'' \175\ As
under the proposed rule, the final rule states that an NNU will be
considered ``indexed'' once it is made publicly available through the
Office's online database of NNUs. The Office has created an online and
searchable database of indexed NNUs for rights owners to search.
---------------------------------------------------------------------------
\175\ 17 U.S.C. 1401(c)(1)(C).
---------------------------------------------------------------------------
A2IM and RIAA request the ability to search the Office's database
of indexed NNUs by rights owner name, as ``[w]ithout this option,
rights owners will be impeded in their ability to exercise their
statutory opt-out right.'' \176\ This suggestion has been adopted.
Rights owners will be able to search on the current or last-known
rights owner, as well as the prospective user's name, the title of the
sound recording (which includes alternate title(s)), the featured
artist(s) (which includes alternate artist name(s)), and the ISRC.\177\
---------------------------------------------------------------------------
\176\ A2IM & RIAA NPRM Comment at 7.
\177\ Similar to the database of Pre-1972 Schedules discussed
above, the Office's database of NNUs will allow for wildcard
searching by using an asterisk to fill in partial words.
---------------------------------------------------------------------------
In support of the proposed rule, A2IM and RIAA agree that users
cannot rely on NNUs filed by third parties (other than the user's
agent).\178\ The final rule adopts this provision, as well as the
provision stating that a user cannot rely on her own NNU once the
proposed term of use ends (i.e., she must conduct a new good faith,
reasonable search and file a new NNU). The Office's instructions will
further clarify that filers should not rely on information contained in
NNUs filed by third parties.\179\
---------------------------------------------------------------------------
\178\ See id. at 2.
\179\ See Copyright Alliance NPRM Comment at 4 (``The Copyright
Office should clarify to third parties that it does not verify the
validity or accuracy of information on NNUs, and third parties may
not rely on the information.'').
---------------------------------------------------------------------------
C. Opt-Out Notices
The proposed rule stated that if a rights owner files a timely Pre-
1972 Opt-Out Notice, the user must wait one year before filing another
NNU for the same or similar use of the Pre-1972 Sound Recording.\180\
A2IM and RIAA suggest that ``there should be some finite limit on the
number of times a user can file the same/similar request involving the
same recording.'' \181\ They note that ``it seems unlikely that a bona
fide user wishing to make a bona fide noncommercial use would still be
seeking permission to use the same recording for the same or a similar
purpose two or three years later,'' and that because the initial opt-
out filing will identify the rights owner, ``the user will have
obtained all of the information necessary to contact the rights owner
directly to negotiate a voluntary license.'' \182\ They propose
limiting a user from filing the same NNU two or three times, or
prohibiting the user from filing additional requests for the same/
similar use of the same recording at any time more than five years
after the initial request was filed.\183\ The Office believes that a
one-year waiting period is sufficient, and that the Office's database
of indexed NNUs should provide rights owners with notice (particularly
because the database will list the most recently-indexed NNUs first).
Accordingly, the final rule states that if a rights owner files a
timely Pre-1972 Opt-Out Notice, the user must wait one year before
filing another notice proposing the same or similar use of the same
sound recording(s).
---------------------------------------------------------------------------
\180\ NPRM at 1675.
\181\ A2IM & RIAA NPRM Comment at 8.
\182\ Id.
\183\ Id.
---------------------------------------------------------------------------
As with NNUs and similar filings made with the Office, the final
rule states that the Office does not review Pre-1972 Opt-Out Notices
for legal sufficiency, but rather whether the formal and legal
procedural requirements have been met. The Office will exercise
discretion to reject a Pre-1972 Opt-Out Notice that fails to comply
with the Office's requirements or instructions, such as failing to
provide required information or containing other facially obvious
errors. Rights owners are cautioned to review and scrutinize Pre-1972
Opt-Out Notices to assure their legal sufficiency before submitting
them to the Office.
D. Fraudulent Filings
Section 1401 contemplates civil penalties for the filing of
fraudulent NNUs (e.g., fraudulently describing the proposed use) and
for the filing of fraudulent Pre-1972 Opt-Out Notices.\184\ In
connection with the Office's exercise of the regulatory authority
directed under the MMA and its general authority and responsibility to
[[Page 14254]]
administer title 17,\185\ the proposed rule stated that if the Register
becomes aware of abusive or fraudulent notices from a certain filer,
she shall have the discretion to reject all submissions from that filer
under section 1401(c) for up to one year.\186\
---------------------------------------------------------------------------
\184\ 17 U.S.C. 1401(c)(6)(A); id. at 1401(c)(6)(B).
\185\ See id. at 1401(c)(3), (5)(A); id. at 701(a), 702.
\186\ NPRM at 1674-75.
---------------------------------------------------------------------------
Copyright Alliance, A2IM, and RIAA object to imposing such a
penalty or one-year ``ban.'' \187\ Copyright Alliance asserts that ``a
rights owner can opt-out of a[n] NNU without needing any justification,
so the circumstances where there would be abuse or fraud present are,
at best, exceedingly narrow,'' and that such a `` `lock-out' mechanism
. . . would be unduly prejudicial to rights owners, as it would prevent
them from opting out of the use of works they own exclusive rights
to.'' \188\ While Copyright Alliance, A2IM, and RIAA maintain that the
statute does not support a ``ban,'' \189\ they acknowledge that civil
penalties may not be a sufficient deterrent in all cases.\190\
---------------------------------------------------------------------------
\187\ A2IM & RIAA NPRM Comment at 9 (objecting ``to the penalty
to the extent it may limit a bona fide rights owner's ability to
file opt-out notices'').
\188\ Copyright Alliance NPRM Comment at 5; see also A2IM & RIAA
NPRM Comment at 10 (``[U]sers and filers are not similarly situated.
Most users will not be repeat filers, at least not to the degree
that larger rights owners will be, so a ban would not impact them in
the same way it would a bona fide rights owner, who may be filing
opt-out notices on an ongoing basis.'').
\189\ A2IM & RIAA NPRM Comment at 9; Copyright Alliance NPRM
Comment at 5.
\190\ See RIAA et al. Ex Parte Letter at 2 (suggesting that
Copyright Office should have ``discretion'' to ``address . . .
concerns about malicious bad actors that are abusive filers); A2IM &
RIAA NPRM Comment at 10 (proposing ``that the Office retain the
proposed ban but exempt bona fide rights owners (who could be
identified by an Office-issued log-in credential) from the proposed
ban''); Copyright Alliance NPRM Comment at 6 (suggesting that
``where the Office believes an opt-out has not come from the bona
fide rights owner, that it attempts to correspond with the filer to
establish that they own the rights and take appropriate action from
there'').
---------------------------------------------------------------------------
By including the words ``abuse'' and ``fraud'' in the proposed
rule, this aspect of the rule targeted filers intentionally filing
false or fraudulent filings, not ``bona fide rights owners'' who
mistakenly file Pre-1972 Opt-Out Notices containing errors.\191\
Indeed, section 1401(c) targets the filers of NNUs and Pre-1972 Opt-Out
Notices where such filings are ``willful'' and/or ``knowing'' acts of
fraud.\192\ The Office anticipates that few filings would reach the
level of ``willful'' and/or ``knowing'' acts of fraud to trigger such
civil penalties. And as the statute contemplates civil penalties for
both fraudulent NNUs and Pre-1972 Opt-Out Notices, the proposed rule
similarly sought an evenhanded approach. Moreover, the proposed penalty
assumed that the Office has general regulatory authority to discipline
repeated, abusive filers (such as filers of spoof notices) who may be
undeterred even by threats of monetary penalty, as part of its general
obligation and authority to administer this filing.\193\
---------------------------------------------------------------------------
\191\ See A2IM & RIAA NPRM Comment at 9.
\192\ 17 U.S.C. 1401(c)(6)(A); id. at 1401(c)(6)(B)(i); see also
id. at 1401(c)(6)(C).
\193\ Id. at 702; id. at 1401(c)(3)(B); id. at 1401(c)(5)(A).
---------------------------------------------------------------------------
To accommodate concerns about disproportionally penalizing
rightsholders, while providing flexibility should civil penalties be an
insufficient deterrent in other cases, the final rule states that if
the Register becomes aware of abuse or fraudulent filings by or from a
certain filer or user, she has discretion to impose civil penalties
ranging up to $1,000 per instance of fraud or abuse, and/or other
penalties to deter additional false or fraudulent filings from that
filer, including potentially rejecting future submissions for up to one
year.
E. Filing Fees
The Copyright Act grants the Office authority to establish, adjust,
and recover fees for services provided to the public.\194\ The NPRM
proposed that the fee to file an NNU or an Opt-Out Notice should be the
same as the current fee to record a notice of intention to make and
distribute phonorecords under section 115 (``NOI''), as such filings
are generally processed similarly by the Office (i.e., at the same
internal cost).\195\
---------------------------------------------------------------------------
\194\ See id. at 708. Because they do not involve services
specified in section 708(a), the fees proposed in this NPRM are not
subject to the adjustment of fees provision in section 708(b).
\195\ NPRM at 1675; see 37 CFR 201.3(e)(1) ($75). The proposed
fee was lower than the cost to record a document for a single title.
See id. at 201.3(c)(17) ($105). Basing the cost of a service on the
cost for a similar service is appropriate. See 83 FR 24054, 24059
(May 24, 2018) (proposing setting new fees at the same level for
``analogous'' services). In 2017, Booz Allen Hamilton conducted a
study of the Office's most recent fee structure. When asked whether
existing rates could be leveraged for new group registration
options, it concluded it was appropriate if the work required was of
a similar grade and compensation level. Booz Allen Hamilton, U.S.
Copyright Office, Fee Study: Question and Answers 6 (Dec. 2017),
https://www.copyright.gov/rulemaking/feestudy2018/fee_study_q&a.pdf.
---------------------------------------------------------------------------
Commenters expressed concern that the proposed fees are too high
for both users and rights owners. Public Knowledge maintains that
``noncommercial uses will neither be motivated by, nor likely result
in, significant or foreseeable financial revenues or other material
rewards,'' and so ``unlike the filing fees associated with commercial
uses, there is a much higher risk that a substantial fee will be
uneconomical for many users and/or otherwise deter the use of this
provision.'' \196\ Similarly, A2IM, RIAA, Copyright Alliance, and FMC
contend that if the Office's review will not serve a ``gatekeeping''
function (i.e., review NNUs for legal sufficiency) rights owners should
not have to pay to file Pre-1972 Opt-Out Notices.\197\ Copyright
Alliance further contends that ``the burden of administering this
exception should fall primarily on the user seeking to benefit from it
rather than the rights owner seeking to maintain her exclusive
rights,'' \198\ and A2IM and RIAA suggest that ``the Office should
monitor the NNUs to determine what percentage of them are facially
deficient and modify the filing fee as appropriate,'' as well as
``determine the actual costs of accepting and indexing opt-out notices
at its next opportunity to do so.'' \199\
---------------------------------------------------------------------------
\196\ Public Knowledge NPRM Comment at 9; see also Public
Knowledge Ex Parte Letter at 1-2.
\197\ A2IM & RIAA NPRM Comment at 10-11 (asking the Office to
``either review NNUs for legal sufficiency before indexing them or
eliminate the filing fee associated with filing opt-out notices'');
Copyright Alliance NPRM Comment at 6; FMC NPRM Comment at 3; see
also Recording Academy NPRM Comment at 4.
\198\ Copyright Alliance NPRM Comment at 6. Copyright Alliance
also expressed that the proposed fee to file an NNU ``does not
appear excessive,'' as it ``provides a benefit analogous to a free
license to use a work otherwise protected by the law.'' Copyright
Alliance Ex Parte Letter at 2. If the cost to file an NNU decreases,
Copyright Alliance maintains that ``the fees for filing opt-out
notices should also be lowered to maintain, at a minimum, parity
between the fees.'' Id.
\199\ A2IM & RIAA NPRM Comment at 11.
---------------------------------------------------------------------------
As noted above, the Office does intend to review NNUs for
regulatory compliance, including to confirm that the correct form has
been used, that all required information has been provided and is
legible, and that the NNU has been properly certified--and will reject
NNUs failing to comply with the Office's requirements or instructions.
Such review parallels the Office's examination of other documents
before they are incorporated into the Office's public record.\200\
Accordingly, while the Office does not intend to index ``facially
deficient'' NNUs (or Opt-Out notices), this gatekeeping process
accordingly involves some provision of resources.
---------------------------------------------------------------------------
\200\ See, e.g., U.S. Copyright Office, Circular 12: Recordation
of Transfers and Other Documents, https://www.copyright.gov/circs/circ12.pdf; see generally Compendium (Third) sec. 2300.
---------------------------------------------------------------------------
The Office notes that potential filers of both notices have
objected to the proposed fees, which the Office has endeavored to set
based on the cost of providing the services. In scrutinizing the
projected cost for these new filings, the Office also recognizes that
NNUs
[[Page 14255]]
and Pre-1972 Opt-Out Notices will typically include information about
only one sound recording, which may require less review than Pre-1972
Schedules and notices of intention to make and distribute phonorecords
under section 115, which the Office evaluated as most comparable
filings. Accordingly, and to encourage use of these new filing
mechanisms in advance of usage data, the filing fees for NNUs and Pre-
1972 Opt-Out Notices will be lowered to that which copyright owners pay
to file a notice to libraries and archives that a published work in its
last twenty years of copyright protection is subject to normal
commercial exploitation, another potentially analogous filing that
services a similar policy function.\201\ In line with its general
approach to fee-setting, the Office will consider whether adjustment
(including potentially increasing the fees) is necessary after data
regarding these filings are available.
---------------------------------------------------------------------------
\201\ 37 CFR 201.3(d)(13) (stating fee for notice to libraries
and archives for a single title is $50); 17 U.S.C. 108(h)(2). The
final rule makes a technical edit to 37 CFR 201.3(c) to correct an
inadvertent error.
---------------------------------------------------------------------------
List of Subjects in 37 CFR Part 201
Copyright, General provisions.
Final Regulations
For the reasons set forth in the preamble, the Copyright Office
amends 37 CFR parts 201 as follows:
PART 201--GENERAL PROVISIONS
0
1. The authority citation for part 201 continues to read as follows:
Authority: 17 U.S.C. 702.
0
2. Amend Sec. 201.3 as follows:
0
a. Revise paragraph (c)(22).
0
b. Redesignate paragraph (c)(23) as paragraph (c)(24).
0
c. Add new paragraph (c)(23).
0
d. Add paragraph (c)(25).
The additions read as follows:
Sec. 201.3 Fees for registration, recordation, and related services,
special services, and services performed by the Licensing Division.
* * * * *
(c) * * *
------------------------------------------------------------------------
Registration, recordation and related services Fees ($)
------------------------------------------------------------------------
* * * * * * *
(22) Notice of noncommercial use of pre-1972 sound recording. 50
(23) Opt-out notice of noncommercial use of pre-1972 sound 50
recording...................................................
* * * * * * *
(25) Removal of PII from Registration Records................ .........
(i) Initial request, per registration record............. 130
(ii) Reconsideration of denied requests, flat fee........ 60
* * * * * * *
------------------------------------------------------------------------
* * * * *
0
3. Amend Sec. 201.4 as follows:
0
a. Revise paragraph (b)(3).
0
b. In paragraph (b)(10), remove ``; and'' and add a semicolon in its
place.
0
c. In paragraphs (b)(11) through (13), remove the period at the end of
each paragraph and add a semicolon in their place.
0
d. Add paragraphs (b)(14) and (15).
The revision and additions read as follows:
Sec. 201.4 Recordation of transfers and other documents pertaining to
copyright.
* * * * *
(b) * * *
(3) Notices of use of sound recordings under statutory license and
notices of intention to obtain a compulsory license to make and
distribute phonorecords of nondramatic musical works (17 U.S.C. 112(e),
114, and 115(b); see Sec. Sec. 201.18 and 370.2);
* * * * *
(14) Notices of noncommercial use of pre-1972 sound recordings (17
U.S.C. 1401(c)(1)(B); see Sec. 201.37); and
(15) Opt-out notices of noncommercial use of pre-1972 sound
recordings (17 U.S.C. 1401(c)(1)(C); see Sec. 201.37).
* * * * *
0
4. Add Sec. 201.37 to read as follows:
Sec. 201.37 Noncommercial use of pre-1972 sound recordings.
(a) General. This section prescribes the rules under which a user,
desiring to make noncommercial use of a pre-1972 sound recording
pursuant to 17 U.S.C. 1401(c), conducts a good faith, reasonable search
to determine whether the sound recording is being commercially
exploited, and if not, files a notice of noncommercial use with the
Copyright Office. This section also prescribes the rules under which a
rights owner of a pre-1972 sound recording identified in a notice of
noncommercial use may file an opt-out notice opposing a proposed use of
the sound recording, pursuant to 17 U.S.C. 1401(c)(1)(C).
(b) Definitions. For purposes of this section:
(1) Unless otherwise specified, the terms used have the meanings
set forth in 17 U.S.C. 1401.
(2) A pre-1972 sound recording is a sound recording fixed before
February 15, 1972. A post-1972 remastered version of a pre-1972 sound
recording that consists of mechanical contributions or contributions
that are too minimal to be copyrightable qualifies as a pre-1972 sound
recording for purposes of this section.
(3) For pre-1972 sound recordings of classical music, including
opera:
(i) The title of the pre-1972 sound recording means, to the extent
applicable and known by the user, any and all title(s) of the sound
recording and underlying musical composition known to the user, and the
composer and opus or catalogue number(s) of the underlying musical
composition; and
(ii) The featured artist(s) of the pre-1972 sound recording means,
to the extent applicable and known by the user, the featured
soloist(s); featured ensemble(s); featured conductor; and any other
featured performer(s).
(4) An Alaska Native or American Indian tribe is a tribe included
in the U.S. Department of the Interior's list of federally recognized
tribes, as published annually in the Federal Register.
(c) Conducting a good faith, reasonable search. (1) Pursuant to 17
U.S.C. 1401(c)(3)(A), a user desiring to
[[Page 14256]]
make noncommercial use of a pre-1972 sound recording should
progressively search for the sound recording in each of the categories
below until the user finds the sound recording. If the user finds the
sound recording in a search category, the user need not search the
subsequent search categories. If the user does not find the pre-1972
sound recording after searching each of the categories below, her
search is sufficient for purposes of the safe harbor in 17 U.S.C.
1401(c)(4), establishing that she made a good faith, reasonable search
without finding commercial exploitation of the sound recording by or
under the authority of the rights owner. The categories are:
(i) Searching the Copyright Office's database of indexed schedules
listing right owners' pre-1972 sound recordings (https://www.copyright.gov/music-modernization/pre1972-soundrecordings/search-soundrecordings.html);
(ii) Searching at least one major search engine, namely Google,
Yahoo!, or Bing, to determine whether the pre-1972 sound recording is
being offered for sale in download form or as a new (not resale)
physical product, or is available through a streaming service;
(iii) Searching at least one of the following streaming services:
Amazon Music Unlimited, Apple Music, Spotify, or TIDAL;
(iv) Searching YouTube, to determine whether the pre-1972 sound
recording is offered under license by the sound recording rights owner
(e.g., record label or distribution service);
(v) Searching SoundExchange's repertoire database through the
SoundExchange ISRC lookup tool (https://isrc.soundexchange.com/#!/search);
(vi) Searching at least one major seller of physical product,
namely Amazon.com, and if the pre-1972 sound recording is of classical
music or jazz, searching a smaller online music store that specializes
in product relative to that niche genre, namely: ArkivJazz, ArkivMusic,
Classical Archives, or Presto; in either case, to determine whether the
pre-1972 sound recording is being offered for sale in download form or
as a new (not resale) physical product; and
(vii) For pre-1972 ethnographic sound recordings of Alaska Native
or American Indian tribes, searching, if such contact information is
known to the user, by contacting the relevant Alaska Native or American
Indian tribe and the holding institution of the sound recording (such
as a library or archive) to gather information to determine whether the
sound recording is being commercially exploited. If this contact
information is not previously known to the prospective user, the user
should use the information provided by the U.S. Department of the
Interior's Bureau of Indian Affairs' Tribal Leaders directory, which
provides contact information for each federally recognized tribe.
(2) A search under paragraph (c)(1) of this section must include
searching the title of the pre-1972 sound recording and its featured
artist(s). If the user knows any of the following attributes of the
sound recording, and the source being searched has the capability to
search any of these attributes, the search must also include searching:
alternate artist name(s), alternate title(s), album title, and the
International Standard Recording Code (``ISRC''). A user is encouraged,
but not required, to search additional known attributes, such as the
label or version. A user searching using a search engine should draw
reasonable inferences from the search results, including following
those links whose name or accompanying text suggest that commercial
exploitation might be found there, and reading additional pages of
results until two consecutive pages return no such suggestive links. A
user need not read every web page returned in a search result.
(3) A search under paragraph (c)(1) of this section must be
conducted no later than 90 days of the user (or her authorized agent)
filing a notice of noncommercial use under paragraph (d)(1) of this
section to be sufficient for purposes of the safe harbor in 17 U.S.C.
11401(c)(4).
(4) For purposes of the safe harbor in 17 U.S.C. 1401(c)(4), a user
cannot rely on:
(i) A search conducted under paragraph (c)(1) of this section by a
third party who is not the user's authorized agent; or
(ii) A notice of noncommercial use filed under paragraph (d)(1) of
this section by a third party (who is not the user's authorized agent).
(5) A user is encouraged to save documentation (e.g., screenshots,
list of search terms) of her search under paragraph (c)(1) of this
section for at least three years in case her search is challenged.
(d) Notices of noncommercial use--(1) Form and submission. A user
seeking to comply with 17 U.S.C. 1401(c)(1) (or her authorized agent)
must submit a notice of noncommercial use identifying the pre-1972
sound recording that the user intends to use and the nature of such use
using an appropriate form and instructions provided by the Copyright
Office on its website. The Office may reject any submission that fails
to comply with the requirements of this section.
(2) Content. A notice of noncommercial use shall contain the
following:
(i) The user's full legal name, and whether the user is an
individual person or corporate entity, including whether the entity is
a tax-exempt organization as defined under the Internal Revenue Code.
Additional contact information, including an email address, may be
optionally provided.
(ii) The title and featured artist(s) of the pre-1972 sound
recording desiring to be used.
(iii) If any are known to the user, the current or last-known
rights owner (e.g., record label), alternate artist name(s), alternate
title(s), album title, and International Standard Recording Code
(``ISRC'').
(iv) The user may include additional optional information about the
pre-1972 sound recording as permitted by the Office's form or
instructions, such as the year of release.
(v) A description of the proposed noncommercial use, including a
summary of the project and its purpose, how the pre-1972 sound
recording will be used in the project, the start and end dates of the
use, and where the proposed use will occur (i.e., the U.S.-based
territory of the use). The user may include additional optional
information detailing the proposed use, such as the tentative title of
the project, the playing time of the pre-1972 sound recording to be
used as well as total playing time of the project, a description of
corresponding visuals in the case of audiovisual uses, and whether and
how the user will credit the sound recording title, featured artist,
and/or rights owner in connection with the project.
(vi) A certification that the user searched but did not find the
pre-1972 sound recording in a search conducted under paragraph (c) of
this section, or else conducted a good faith, reasonable search for,
but did not find, the sound recording in the Copyright Office's
database of indexed schedules listing right owners' pre-1972 sound
recordings, or on services offering a comprehensive set of sound
recordings for sale or streaming.
(vii) A certification that the individual submitting the notice of
noncommercial use has appropriate authority to submit the notice, that
the user desiring to make noncommercial use of the pre-1972 sound
recording (or the user's authorized agent) conducted a search under
paragraph (c) of this section or else conducted a good faith,
reasonable search under 17 U.S.C. 1401(c)(4), within the last 90 days
without finding
[[Page 14257]]
commercial exploitation of the sound recording, and that all
information submitted to the Office is true, accurate, and complete to
the best of the individual's knowledge, information, and belief, and is
made in good faith.
(3) Noncommercial use of a pre-1972 recording under this section is
limited to use within the United States.
(4) A notice of noncommercial use may not include proposed use for
more than one pre-1972 sound recording unless all of the sound
recordings include the same featured artist(s) and were released on the
same pre-1972 album or other unit of publication. In the case of
``greatest hits'' or compilation albums, all of the sound recordings
listed on a notice must also share the same record label or other
rights owner information, as listed on the notice.
(5) The Copyright Office will assign each indexed notice of
noncommercial use a unique identifier to identify the notice in the
Office's public records.
(6) Legal sufficiency. (i) The Copyright Office does not review
notices of noncommercial use submitted under paragraph (d)(1) of this
section for legal sufficiency. The Office's review is limited to
whether the procedural requirements established by the Office
(including payment of the proper filing fee) have been met. The fact
that the Office has indexed a notice is not a determination by the
Office of the notice's validity or legal effect. Indexing by the
Copyright Office is without prejudice to any party claiming that the
legal or formal requirements for making a noncommercial use of a pre-
1972 sound recording have not been met, including before a court of
competent jurisdiction. Users are therefore cautioned to review and
scrutinize notices of noncommercial use to assure their legal
sufficiency before submitting them to the Office.
(ii) If a rights owner does not file an opt-out notice under
paragraph (e) of this section, when the term of use specified in the
notice of noncommercial use ends, the user must cease noncommercial use
of the pre-1972 sound recording for purposes of remaining in the safe
harbor in 17 U.S.C. 1401(c)(4). Should the user desire to requalify for
the safe harbor with respect to that same recording, the user must
conduct a new search and file a new notice of noncommercial use under
paragraphs (c) and (d) of this section, respectively.
(7) Filing date. The date of filing of a notice of noncommercial
use is the date when a proper submission, including the prescribed fee,
is received in the Copyright Office. The filing date may not
necessarily be the same date that the notice, for purposes of 17 U.S.C.
1401(c)(1)(C), is indexed into the Office's public records.
(8) Fees. The filing fee to submit a notice of noncommercial use
pursuant to this section is prescribed in Sec. 201.3(c).
(9) Third-party notification. A person may request timely
notification of filings made under paragraph (d)(1) of this section by
following the instructions provided by the Copyright Office on its
website.
(e) Opt-out notices--(1) Form and submission. A rights owner
seeking to comply with 17 U.S.C. 1401(c)(1)(C) (or her authorized
agent) must file a notice opting out of a proposed noncommercial use of
a pre-1972 sound recording filed under paragraph (d)(1) of this section
using an appropriate form provided by the Copyright Office on its
website and following the instructions for completion and submission
provided on the Office's website or the form itself. The Office may
reject any submission that fails to comply with the requirements of
this section, or any relevant instructions or guidance provided by the
Office.
(2) Content. An opt-out notice use shall contain the following:
(i) The user's name, rights owner's name, sound recording title,
featured artist(s), an affirmative ``yes'' statement that the rights
owner is opting out of the proposed use, and the unique identifier
assigned to the notice of noncommercial use by the Copyright Office.
Additional contact information for the rights owner, including an email
address, may be optionally provided.
(ii) A certification that the individual submitting the opt-out
notice has appropriate authority to submit the notice and that all
information submitted to the Office is true, accurate, and complete to
the best of the individual's knowledge, information, and belief, and is
made in good faith.
(iii) Submission of an opt-out notice does not constitute agreement
by the rights owner or the individual submitting the opt-out notice
that the proposed use is in fact noncommercial. The submitter may
choose to comment upon whether the rights owner agrees that the
proposed use is noncommercial use, but failure to do so does not
constitute agreement that the proposed use is in fact noncommercial.
(3) Where a pre-1972 sound recording has multiple rights owners,
only one rights owner must file an opt-out notice for purposes of 17
U.S.C. 11401(c)(5).
(4) If a rights owner files a timely opt-out notice under paragraph
(e)(1) of this section, a user must wait one year before filing another
notice of noncommercial use proposing the same or similar use of the
same pre-1972 sound recording(s).
(5) Legal sufficiency. The Copyright Office does not review opt-out
notices submitted under paragraph (e)(1) of this section for legal
sufficiency. The Office's review is limited to whether the procedural
requirements established by the Office (including payment of the proper
filing fee) have been met. Rights owners are therefore cautioned to
review and scrutinize opt-out notices to assure their legal sufficiency
before submitting them to the Office.
(6) Filing date. The date of filing of an opt-out notice is the
date when a proper submission, including the prescribed fee, is
received in the Copyright Office.
(7) Fee. The filing fee to submit an opt-out notice pursuant to
this section is prescribed in Sec. 201.3(c).
(f) Fraudulent filings. If the Register becomes aware of abuse or
fraudulent filings under this section by or from a certain filer or
user, she shall have the discretion to impose civil penalties up to
$1,000 per instance of fraud or abuse, and/or other penalties to deter
additional false or fraudulent filings from that filer, including
potentially rejecting future submissions from that filer for up to one
year.
Dated: April 1, 2019.
Karyn A. Temple,
Register of Copyrights and Director of the U.S. Copyright Office.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2019-06883 Filed 4-8-19; 8:45 am]
BILLING CODE 1410-30-P
