02-31017. Request for Written Comments and Notice of Hearings on Technological Protection Systems for Digitized Copyrighted Works

AGENCY:

United States Patent and Trademark Office, Commerce.

ACTION:

Request for written comments and notice of hearings.

SUMMARY:

The United States Patent and Trademark Office (USPTO) requests written comments that will assist the agency in preparing a report to Congress required by the “Technology, Education and Copyright Harmonization Act of 2002.” The report will provide information to Congress on technological protection systems for digitized copyrighted works and to prevent infringement. The USPTO also may conduct a hearing to obtain information for the report and requests a response from persons interested in providing testimony.

DATES:

Written comments are due at the offices of the USPTO on January 14, 2003. A hearing is tentatively scheduled for the Washington, DC area, on February 4, 2003. Based on expressions of public interest, additional hearings may be scheduled. Requests to testify must be received by January 14, 2003.

ADDRESSES:

Written comments and requests to testify should be addressed to the United States Patent and Trademark Office, Office of Legislative and International Affairs, Room 902, 2121 Crystal Drive, Arlington, VA 22202, or faxed to [phone], marked to the attention of Velica Steadman. Written comments also may be sent via electronic mail to [e-mail]. A specific time and location for the proposed hearing will be determined based on responses received from persons who express an interest in testifying and will be posted on the USPTO's Web site at http://www.uspto.gov.

FOR FURTHER INFORMATION CONTACT:

Michael S. Shapiro by telephone at [phone] or by electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

1. Background

On November 2, 2002, the President signed into law the “Technology, Education and Copyright Harmonization Act of 2002” (the TEACH Act), Pub. L. 107-273, which updates certain provisions of the Copyright Act to facilitate the growth and development of distance education, while introducing new safeguards to limit the additional risks to copyright owners that are inherent in exploiting works in a digital format. As discussed more fully below, the TEACH Act requires the USPTO to submit a report to Congress on technological protection systems for digitized copyrighted works and to prevent infringement. The brief discussion of the TEACH Act that follows is intended only to provide some context for that report.

Over the last several years, the educational opportunities and risks associated with distance education have been the subject of extensive public debate and attention in the United States. In November 1998, the Conference on Fair Use (CONFU), convened by the Administration's Information Infrastructure Task Force, issued its final report, which included a proposal for educational fair use guidelines for distance learning.^[1] In May 1999, the U.S. Copyright Office issued an extensive report on copyright and digital distance education.^[2] The Senate Committee on the Judiciary and the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property held hearings on the TEACH Act.^[3] For more detailed information on the background and legislative history of the TEACH Act, interested persons may wish to visit the USPTO Web site at http://www.uspto.gov and the U.S. Copyright Office Web site at http://www.loc.gov.

Subsection (b) of the TEACH Act amends section 110(2) of the Copyright Act to encompass performances and displays of copyrighted works in digital distance education under appropriate circumstances and subject to certain limitations. The Act expands the categories of works exempt from the performance right, from nondramatic literary works and musical works to “reasonable and limited portions” of any work and permits the display of any work in “an amount comparable to that typically displayed in the course of a live classroom setting.” The Act removes the concept of the physical classroom, while maintaining the requirement of “mediated instructional activity,” which generally requires the involvement of an instructor. The exemption is limited to mediated instructional activities that are conducted by governmental bodies and “accredited” non-profit educational institutions. Subsection (c) of the TEACH Act amends section 112 of the Copyright Act to permit transmitting organizations to store copyrighted material on their servers in order to allow the performances and displays of works authorized under amended section 110(2).

The TEACH Act contains a number of new safeguards to limit the additional risks to copyright owners that are inherent in using works in the digital format. Section 110(2)(C) limits the receipt of authorized transmissions, “to the extent technologically feasible,” to students officially enrolled in the course or to Government employees as part of their official duties. Section 110(2)(D)(ii) requires transmitting institutions to apply technological measures that “reasonably prevent retention of the work in accessible form by recipients of the transmission * * * for longer than the class session” and the “unauthorized further dissemination” of the work. Section 110(2)(D)(ii) also prohibits transmitting institutions from engaging in “conduct that could reasonably be expected to interfere” with such technological measures.

2. Mandate for the Report

Subsection (d) of the TEACH Act requires the Under Secretary of Commerce for Intellectual Property, after consultation with the Register of Copyrights and after a period of public comment, to submit to the Committees on the Judiciary of the Senate and the House of Representatives a report on technological protection systems for digitized copyrighted works. The report, which is intended solely to provide information to Congress, is due not later than 180 days after the date of enactment of the Act.

Congress specifically directed the USPTO to include information “on technological protection systems that have been implemented, are available for implementation, or are proposed to be developed to protect digitized copyrighted works and prevent infringement, including upgradeable and self-repairing systems, and systems that have been developed, are being developed, or are proposed to be developed in private voluntary industry-led entities through an open broad based consensus process.” Congress also directed the USPTO to exclude “any recommendations, comparisons, or comparative assessments of any commercially available products that may be mentioned in the report.”

Subsection (d) of the Act further states that the report “shall not be construed to affect in any way, either directly or by implication, any provision” of the Copyright Act in general or the TEACH Act in particular, including the requirements of section 110(2)(D)(ii) of the TEACH Act (discussed above), or “the interpretation or application of such provisions, including evaluation of the compliance with that clause by any governmental body or nonprofit educational institution.”

Request for Written Comments

The USPTO requests that persons interested in submitting written comments organize their comments as follows:

(1) What technological protection systems have been implemented, are available for implementation, or are proposed to be developed to protect digitized copyrighted works and prevent infringement, including any upgradeable and self-repairing systems?

(2) What systems have been developed, are being developed, or are proposed to be developed in private voluntary industry-led entities through an open broad-based consensus process?

(3) Consistent with the types of information requested by Congress, please provide any additional comments on technological protection systems to protect digitized copyrighted works and prevent infringement.

Written comments must be received by January 14, 2003, and should be addressed to the United States Patent and Trademark Office, Office of Legislative and International Affairs, Room 902, 2121 Crystal Drive, Arlington, VA 22202, ATTN: Velica Steadman, Office of Legislative and International Affairs; faxed to Velica Steadman's attention at [phone]; or sent via electronic mail to [e-mail].

In addition, as noted above, the USPTO will schedule a hearing to obtain information for the report on the basis of expressions of public interest. The hearing is tentatively scheduled for the Washington, DC area on February 4, 2003. Based on expressions of public interest, additional hearings may be scheduled. Requests to testify must be received by January 14, 2003. A specific time and location for the proposed hearing will be determined based on responses received from persons who express an interest in testifying and will be posted on USPTO's Web site at http://www.uspto.gov.

Dated: December 3, 2002.

James E. Rogan,

Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.

Footnotes

1.  See The Conference on Fair Use: Final Report to the Commissioner on the Conclusion of the Conference on Fair Use (U.S. Patent and Trademark Office, November 1998). The report is available on-line at http://www.uspto.gov/​web/​offices/​dcom/​olia/​confu/​confurep.htm

2.  See Report on Copyright and Digital Distance Education: A Report to the Register of Copyrights (U.S. Copyright Office, May 1999). The report is available at http://www.copyright.gov/​disted/​.

3.  See the Report of the Senate Committee on the Judiciary on the Technology, Education and Copyright Act of 2001, S.R. Rep. No. 107-31, 107th Congress, 1st Session and the Report of the House Committee on the Judiciary on the Technology, Education and Copyright Act of 2001, H.R. Rep. No. 107-687, 107th Congress, 2d Session.