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time of the preparation of the notice of TUV will meet all the terms of its (preferred) to the e–mail address the preliminary finding. recognition and will always comply [email protected], or (2) by hand OSHA’s recognition of TUV, or any with all OSHA policies pertaining to delivery by a private party or a NRTL, for a particular test standard is this recognition; and commercial, non–government courier or limited to equipment or materials (i.e., TUV will continue to meet the messenger, addressed to the Office of products) for which OSHA standards requirements for recognition in all areas Strategic Initiatives, , require third-party testing and where it has been recognized. James Madison Memorial Building, certification before use in the Edwin G. Foulke, Jr., Room LM–637, 101 Independence workplace. Consequently, if a test Avenue S.E., Washington, DC 20540, Assistant Secretary of Labor. standard also covers any product(s) for between 8:30 a.m. and 5 p.m. E.S.T. If which OSHA does not require such [FR Doc. E6–20406 Filed 12–1–06; 8:45 am] delivering by courier or messenger testing and certification, an NRTL’s BILLING CODE 4510–26–P please provide the delivery service with scope of recognition does not include the Office of Strategic Initiatives phone that product(s). number: (202) 707–3300. (See Many UL test standards also are LIBRARY OF CONGRESS Supplementary Information, Section 4: ‘‘Procedures for Submitting Requests to approved as American National Office Standards by the American National Participate in Roundtable Discussions Standards Institute (ANSI). However, for Docket No. 07–10802 and for Submitting Written Comments’’ convenience, we use the designation of below for file formats and other the standards developing organization Section 108 Study Group: Copyright information about electronic and non– for the standard as opposed to the ANSI Exceptions for Libraries and Archives electronic submission requirements.) designation. Under our procedures, any AGENCY: Office of Strategic Initiatives Submission by overnight service or NRTL recognized for an ANSI-approved and Copyright Office, Library of regular mail will not be effective. test standard may use either the latest Congress. The public roundtable will be held at DePaul University College of Law, proprietary version of the test standard ACTION: Notice of a public roundtable or the latest ANSI version of that with request for comments. Lewis Building, 10th Floor, Room 1001, standard. You may contact ANSI to find 25 E. Jackson Boulevard, Chicago, out whether or not a test standard is SUMMARY: The Section 108 Study Group Illinois, 60604, on Wednesday, January currently ANSI-approved. announces a public roundtable 31, 2007. discussion on certain issues relating to FOR FURTHER INFORMATION CONTACT: Conditions the exceptions and limitations Christopher Weston, Attorney–Advisor, TUV must also abide by the following applicable to libraries and archives U.S. Copyright Office. E–mail conditions of the recognition, in under the Copyright Act, and seeks [email protected], Telephone (202) 707– addition to those already required by 29 written comments on these issues. This 2592, Fax (202) 707–0815. CFR 1910.7: notice (1) announces a public SUPPLEMENTARY INFORMATION: OSHA must be allowed access to roundtable discussion regarding the TUV’s facilities and records for issues identified in this notice and (2) 1. Background. purposes of ascertaining continuing requests written comments from all The Section 108 Study Group was compliance with the terms of its interested parties on the issues convened in April 2005 under the recognition and to investigate as OSHA described in this notice. These issues sponsorship of the Library of Congress’ deems necessary; relate primarily to making and National Digital Information If TUV has reason to doubt the distributing copies pursuant to requests Infrastructure and Preservation Program efficacy of any test standard it is using by individual users, as well as to (NDIIPP), in cooperation with the U.S. under this program, it must promptly provision of user access to unlicensed Copyright Office. The Study Group inform the test standard developing digital works. seeks written comment on and organization of this fact and provide DATES: Roundtable Discussions: The participation in a roundtable discussion that organization with appropriate public roundtable will be held in scheduled for January 31, 2007, on the relevant information upon which its Chicago, Illinois, on Wednesday, issues described in this notice. The concerns are based; January 31, 2007, from 8:30 a.m. to 4 Study Group is an independent TUV must not engage in or permit p.m. C.S.T. Requests to participate must committee charged with examining how others to engage in any be received by the Section 108 Study the exceptions and limitations to the misrepresentation of the scope or Group by 5 p.m. E.S.T. on January 12, exclusive rights under copyright law conditions of its recognition. As part of 2007. that are applicable specifically to this condition, TUV agrees that it will Written Comments: Interested parties libraries and archives, namely those set allow no representation that it is either may submit written comments on any of out in section 108 of the Copyright Act, a recognized or an accredited Nationally the topics discussed in this notice from may need to be amended to take account Recognized Testing Laboratory (NRTL) 8:30 a.m. E.S.T. on February 1, 2007, to of the widespread use of digital without clearly indicating the specific 5 p.m. E.S.T. on March 9, 2007. technologies. More detailed information equipment or material to which this ADDRESSES: All written comments and regarding the Section 108 Study Group recognition is tied, or that its requests to participate in roundtables and its work can be found at http:// recognition is limited to certain should be addressed to Mary www.loc.gov/section108. products; Rasenberger, Director of Program Section 108 was included in the 1976 TUV must inform OSHA as soon as Management, National Digital Copyright Act in recognition of the vital possible, in writing, of any change of Information Infrastructure and role of libraries and archives to our ownership, facilities, or key personnel, Preservation Program, Office of Strategic nation’s education and cultural heritage, and of any major changes in its Initiatives, Library of Congress. and their unique needs in serving the operations as an NRTL, including Comments and requests to participate public. The exceptions were carefully details; may be sent (1) by electronic mail crafted to maintain a balance between

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the legitimate interests of libraries and are available on the Web site http:// areas and specific questions identified archives on the one hand, and rights– www.loc.gov/section108. in this Federal Register notice. holders on the other, in a manner that Recently, the Study Group examined 3. Specific Questions. best serves the national interest. the provisions of section 108 governing The evolution of copyright law copies made by libraries and archives at The Study Group seeks written demonstrates that the technologies the request of users, including comment and participation in the available at any given time necessarily interlibrary loan copies, as well as roundtable discussions on the questions influence where and how appropriate whether any new provisions relating to set forth below in this Section 3, balances can be struck between the copies, performances or displays made inclusive of Topics A, B and C. interests of rights–holders and users. As in the course of providing access are the Copyright Office recognized in 1988, necessary. Specifically, the Study Group TOPIC A: AMENDMENTS TO it is important to review the section 108 seeks public input on whether any CURRENT SUBSECTIONS 108(d), (e), exceptions periodically to ensure that amendment is warranted to (1) the AND (g)(2) REGARDING COPIES FOR they take account of new technologies subsection 108(d), (e) and (g) provisions USERS, INCLUDING INTERLIBRARY in maintaining a beneficial balance addressing copies made for users, LOAN among the interests of creators and other including copies made under General Issue rights–holders and libraries and interlibrary loan arrangements; (2) the exclusions currently set out in archives. See The Register of Should the provisions relating to , Library Reproduction of subsection 108(i) that prohibit libraries and archives from taking advantage of libraries and archives making and Copyrighted Works (17 U.S.C. 108): distributing copies for users, including Second Report 128–29 (1988). In that subsections (d) and (e) for most non– text–based works; and (3) allow libraries via interlibrary loan (which include the spirit, the Section 108 Study Group is current subsections 108(d), (e), and (g), charged with the task of identifying and archives to make copies of unlicensed electronic works in order to as well as the CONTU guidelines, to be those areas in which new technologies explained below) be amended to reflect have changed the activities of libraries provide user access and to provide access via performance or display. reasonable changes in the way copies and archives, users, and rights–holders, are made and used by libraries and so that the effectiveness or relevance of Note that any amendments to section 108 must conform to the United States’ archives, taking into account the effect applicable section 108 exceptions are of these changes on rights–holders? called into question. The Study Group international obligations under the to provide exceptions will attempt to formulate appropriate, Background workable solutions where amendment is to exclusive rights only ‘‘in certain special cases’’ that do ‘‘not conflict with recommended. Subsections 108 (d) and (e) provide the normal exploitation of the work’’ In March 2006, the Study Group held exceptions to the exclusive rights of and do not ‘‘unreasonably prejudice the public roundtable discussions in Los reproduction and distribution, legitimate interests’’ of the rights– Angeles, California, and Washington, permitting libraries and archives to holder. The Berne Convention for the D.C., and requested written comments make single copies of copyrighted works Protection of Literary and Artistic on issues relating to general eligibility for users. Subsection (d) permits the Works, Sept. 9, 1886, art. 9(2), 25 U.S.T. for the section 108 exceptions, as well copying of articles or portions of works, 1341, 828 U.N.T.S. 221. as preservation and replacement and subsection (e) allows the copying of Nothing in this Federal Register copying. Specifically, interested parties entire works in limited circumstances. notice is meant to reflect a consensus or were asked to comment on (1) proposed Specifically, subsection (d) allows recommendation of the Study Group. amendments to the preservation and libraries and archives to reproduce and Discussions are ongoing in the areas of replacement exceptions in subsections distribute a single copy of ‘‘no more inquiry described below, and the input 108(b) and (c), (2) a proposal to permit than one article or other contribution to the Study Group receives from the preservation copies of published works a copyrighted collection or periodical public through the roundtable, the in limited circumstances, (3) a proposal issue, or . . . a copy or phonorecord written submissions, and otherwise is to permit preservation copies of certain of a small part of any other copyrighted intended to further those discussions. types of Internet content, and (4) Pursuant to 2 U.S.C. 136, the Study work.’’ 17 U.S.C. 108(d) (2003). questions on what entities should be Group now seeks input, both through Subsection (e) allows the reproduction eligible to take advantage of the section written comment and participation in and distribution of an ‘‘entire work, or 108 exceptions. With regard to the the public roundtable described in this . . . a substantial part of it’’ if the latter, the Study Group considered notice, on whether there are compelling library or archives first determines, ‘‘on questions of whether to restrict section concerns in any of the areas identified the basis of a reasonable investigation,’’ 108 eligibility to nonprofit and that merit a legislative or other solution that ‘‘a copy or phonorecord of the work government entities, whether to and, if so, which solutions might cannot be obtained at a fair price.’’ 17 expressly include purely virtual entities, effectively address those concerns U.S.C. 108(e). Additionally, both and whether to include museums. The without conflicting with the legitimate subsections require that (1) the copy Study Group anticipates that it will interests of other stakeholders. become the property of the requesting recommend that section 108 be user (so that libraries and archives amended to cover museums as well as 2. Areas of Inquiry. cannot use these exceptions as a means libraries and archives. Although Public Roundtable. Participants in the to enlarge their collections, see Melville museums are not expressly addressed in roundtable discussions will be asked to B. Nimmer & David Nimmer, Nimmer this notice, the Study Group requests respond to the specific questions set on Copyright § 8.03[E][2][b] (2004)), (2) that you consider the questions set forth forth below in each topic area in this the library or archives making the copy below in light of their potential effects Federal Register notice. has no notice that the copy will be used on museums, as well as on libraries and for any purpose other than ‘‘private archives. The written comments and Written Comments. The Study Group study, scholarship, or research,’’ 17 roundtable transcripts from March 2006 also seeks written comment on the topic U.S.C. 108(d)(1) and (e)(1), and (3) the

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library or archives displays prominently subscription to or purchase of such work.’’ 17 except that no such limitation shall at the place where orders are accepted U.S.C. 108(g)(2). This provision was included apply with respect to . . . pictorial or a copyright warning in accordance with with the intention of preventing certain graphic works published as illustrations, requirements provided by the Register practices from developing under the rubric of diagrams, or similar adjuncts to works of which copies are reproduced or of Copyrights. This notice must also ‘‘interlibrary loan,’’ such as systematic arrangements among libraries to effectively distributed in accordance with appear on the order form. 17 U.S.C. divide up and share subscriptions or subsections (d) and (e). 108(d)(2) and (e)(2). Subsections (d) and purchases (such as where libraries X, Y, and 17 U.S.C. 108(i).1 For brevity’s sake, this (e) apply where a user makes a direct Z all would like to obtain journals A, B, and notice will refer to those categories of request of the library or archives C, so they agree that library X will purchase works excluded from subsections (d) and providing the copy, as well as where a subscription to journal A, library Y to (e) by subsection (i) as ‘‘non–text–based copies are provided by another library journal B, and library Z to journal C, and they works,’’ and those currently covered by (d) or archives through interlibrary loan. will share each subscription with each other and (e) as ‘‘text–based.’’ A further through interlibrary loan). It was agreed in description of subsection (i) and questions Interlibrary loan is the practice through about whether and how it might be which libraries request material from, or 1976 that these types of consortial buying arrangements should not be sanctioned by amended are set forth in Topic B, below. supply material to, other libraries. Its section 108 because by tipping the balance The current subsections (d) and (e) purpose is to obtain, upon request of a too far in favor of the interests of libraries were enacted with the Copyright Act of library user, material not available in they would materially affect sales. 1976, and, as such, were drafted with the user’s own library. Where an entire Guidelines for interpreting the phrase analog copying in mind, namely work, such as a book, is sought, the ‘‘such aggregate quantities as to photocopying. Nothing in the provisions library’s copy of the book itself is substitute for a subscription to or expressly precludes their application to usually delivered to the requesting purchase of such work’’ were digital technologies. However, digital user’s library, called the borrowing promulgated in 1976 by the National copying under subsections (d) and (e) is library. There are cases, however, where Commission on New Technological effectively barred by subsection 108(a)’s it is unsafe or impractical to ship the Uses of Copyrighted Works (CONTU) at single–copy limit. Subsection (a) states work, such as if the copy is particularly the request of Congress and published that ‘‘it is not an infringement of fragile, rare, or unwieldy. In such cases, in the Conference Report on the copyright for a library or archives, or the fulfilling library or archives may . The CONTU any of its employees acting within the create and deliver a copy instead, guidelines are not law, but were scope of their employment, to reproduce provided a copy cannot otherwise be endorsed by Congress as a ‘‘reasonable no more than one copy or phonorecord obtained at a fair price and the other interpretation’’ of subsection (g)(2). H.R. of a work, except as provided in conditions of subsection (e) are met. Conf. Rep. No. 94–1733, at 72–74 subsections (b) and (c).’’ 17 U.S.C. Where just a portion of the work is (1976). The guidelines (available in full 108(a) (emphasis added). As a practical sought, the library or archives may at http://www.copyright.gov/circs/ and technical matter, producing a provide a copy under the conditions set circ21.pdf) state that a library may not digital copy generally requires the out in subsection (d). receive in a single calendar year more production of temporary and incidental The scope of subsections (d) and (e) than five copies of an article or articles copies, and transmitting the copy via is limited by subsection (g), which states published in any given periodical digital delivery systems such as e–mail that the section 108 exceptions apply within five years prior to the date of the requires additional incidental copies. only to ‘‘the isolated and unrelated request. The guidelines do not govern The Copyright Act does not provide any reproduction and distribution of a single interlibrary loan copies of periodical express exception for such copies, copy or phonorecord of the same materials published more than five although section 107 (which sets forth material on separate occasions.’’ 17 years prior to a request. In addition, the the fair use exceptions) might apply in U.S.C. 108(g). Subsection (g)(1) further guidelines provide that a library may some cases, and licenses might be mandates that the provisions do not not receive within a single calendar year implied in others. apply where a library or archives, or its more than five copies of or from any Libraries and archives maintain that employee: given non–periodical work — such as their missions require them to be able to is aware or has substantial reason to fiction and poetry. make and/or provide digital copies to believe that it is engaging in the related The CONTU guidelines also include users ‘‘both directly and via interlibrary or concerted reproduction or distribution certain administrative requirements. All loan’’ in order to respond to the fact that of multiple copies or phonorecords of research, scholarship, and private study the same material, whether made on one interlibrary loan reproduction requests must be accompanied by a certification are now conducted in a digital occasion or over a period of time, and environment. There is an increasing whether intended for aggregate use by that the request conforms to the one or more individuals or for separate guidelines, and libraries and archives amount of so–called ‘‘born–digital’’ use by the individual members of a that request copies must keep records of material in the collections of libraries group .... all fulfilled interlibrary loan and archives, and many users expect to 17 U.S.C. 108(g)(1). In addition, interlibrary reproduction requests for at least three receive materials electronically. There loan or other user copies of articles or small full calendar years after the requests are are also increased efficiencies and portions of larger works under subsection (d) decreased costs when digital are limited by subsection (g)(2). This made. Subsection 108(i) further qualifies technologies are used. Overall, it is subsection states that section 108 does not argued that it makes little sense in this permit the ‘‘systematic reproduction of single subsections (d) and (e) by functionally or multiple copies or phonorecords of limiting their application primarily to day and age to require libraries and material described in subsection (d),’’ and text–based works. Subsection (i) states archives to print analog copies of clarifies that copies made for interlibrary that copies for users may not be made requested materials and deliver them in loan purposes do not violate the prohibition from: person, by mail, or by fax. The Study against systematic copying provided they ‘‘do not have, as their purpose or effect, that the a musical work, a pictorial, graphic or 1Note that subsection(i) does not exclude library or archives receiving such copies or sculptural work, or a motion picture or pantomimes, choreographic works, or sound phonorecords for distribution does so in such other audiovisual work other than an recordings that do not incorporate musical works aggregate quantities as to substitute for a audiovisual work dealing with news, from the subsection (d) and (e) exceptions.

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Group’s understanding is that, as a Internet, potentially multiplying many The primary issue for comment and matter of practice, some libraries and times over and displacing sales. discussion in Topic A is whether and archives do in fact already engage in Rights–holders are also concerned under what circumstances digital digital copying in making copies for about digital copies being made copying and distribution under users under section 108, and necessarily available by libraries and archives under subsections (d) and (e) should be make incidental intermediate digital subsections (d) and (e) to users outside allowed. In responding to the questions copies in doing so, but do not retain their traditional user communities, posed in Topic A, please note that the those copies and often deliver a non– without the mediation of the user’s own Study Group is seeking responses electronic version to the user. library. Online technologies allow regarding the application of subsections It is important to distinguish between libraries and archives to serve anyone (d) and (e) as currently limited by permitting libraries and archives to regardless of geographic distances or subsection (i) (i.e., principally restricted make digital copies for users and membership in a community. Many of to text–based materials). Questions permitting digital delivery of those the section 108 exceptions were put in about applying subsections (d) and (e) to copies. Permitting the making of digital place on the assumption that certain non–text–based works will be addressed copies for users would provide natural limitations, or inherent in Topic B. Also note that the Topic A increased flexibility in how libraries inefficiencies in making photocopies, questions address copies made for a and archives can produce the copies. would prevent the exceptions from library’s or archives’ own users, as well Those digital copies might be unreasonably interfering with the as interlibrary loan copying. distributed in any number of ways, for market for the work. For example, it was Specific Questions instance: (1) a photocopy could be made presumed that users had to go to their 1. How can the copyright law from an analog source and then sent via local library to make an interlibrary loan better facilitate the ability of libraries and archives to make copies for users in fax or mail to the requesting library; (2) request. The technological possibility of the digital environment without unduly a printout could be made from a digital direct digital delivery did not exist. But interfering with the interests of rights– source to create an analog copy, which if it were to become possible under the holders? is then sent via fax or mail to the 108 exceptions, for instance, for any 2. Should the single–copy requesting library; (3) a digital source user electronically to request free copies restriction for copies made under file could be sent to the requesting from any library from their desks, that subsections (d) and (e) be replaced with library via e–mail or posted on a Web natural friction would break down, as a flexible standard more appropriate to site with a secure URL for access by the would the balance originally struck by the nature of digital materials, such as user; or (4) a digital scan could be made the provisions. As such, the potential ‘‘a limited number of copies as from an analog source, which is then for lost sales could increase from reasonably necessary for the library or sent electronically as in example negligible to measurable against the archives to provide the requesting number three. Electronic delivery, as in bottom line, and as such ‘‘conflict with patron with a single copy of the examples three and four above, would the normal exploitation of the work.’’ requested work’’? If so, should this provide increased efficiency and would Berne Convention, art. 9(2). amendment apply both to copies made allow libraries and archives and their One could, for instance, envision for a library’s or archives’ own users and users to take greater advantage of digital direct–to–user interlibrary loan to interlibrary loan copies? technologies to enable increased access arrangements where a user could 3. How prevalent is library and to those works unlikely to be found in search for, request and receive a archives use of subsection (d) for direct local libraries. Electronic delivery raises reproduction of a copyrighted work copies for their own users? For distinct issues from digital copying. online from any library without having interlibrary loan copies? How would Just as digital technologies allow to go through the user’s own library usage be affected if digital reproduction libraries and archives new opportunities that would directly compete with the and/or delivery were explicitly to serve the public, the same rights–holders’ markets. It is not clear to permitted? technologies allow copyright owners to the Study Group that the existing 4. How prevalent is library and develop new business models and provisions of subsections (d) and (e) archives use of subsection (e) for direct modes of distribution. Rights–holders would prevent libraries and archives copies for their own users? For have remarked that giving libraries and from providing this type of universal interlibrary loan copies? How would archives the ability to deliver copies to on–demand access if digital copying usage be affected if digital reproduction users electronically, unless reasonably and delivery are permitted without and/or delivery were explicitly limited, potentially could cause further qualification. While subsection permitted? significant harm to rights–holders by (g) and the CONTU guidelines would 5. If the single–copy restriction is undermining markets for digital works. limit the ability to use subsections (d) replaced with a flexible standard that Many rights–holders are shifting toward and (e) for such interlibrary loan allows digital copies for users, should new models of distribution and practices for certain materials, they restrictions be placed on the making and payment. For instance, markets are would not necessarily eliminate it. The distribution of these copies? If so, what emerging for the online purchase of question then is how to craft rules types of restrictions? For instance, articles or small portions of text–based around digital copying and delivery to should there be any conditions on works. Theoretically, if a user can enable libraries and archives to service digital distribution that would prevent obtain a copy online from any library users efficiently, without opening up users from further copying or through interlibrary loan, he or she the exception in a way that could distributing the materials for might be less likely to purchase a copy, materially interfere with markets for downstream use? Should user even if purchases could be made copyrighted works just as subsections agreements or any technological conveniently. An additional concern is (d) and (e) were limited in 1976 by measures, such as copy controls, be that copies provided to users subsection (g) in order to avoid the required? Should persistent identifiers electronically are susceptible to potential for those exceptions to be used on digital copies be required? How downloading by the user and to in a way that would cause material would libraries and archives implement downstream distribution via the market harm. such requirements? Should such

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requirements apply both to direct copies transactions? If so, how should they instance, the current subsection (d) for users and to interlibrary loan copies? differ? boundaries of ‘‘an article or other 6. Should digital copying for users TOPIC B: AMENDMENTS TO contribution to a copyrighted collection be permitted only upon the request of a SUBSECTION 108(i) or periodical issue,’’ 17 U.S.C. 108(d), member of the library’s or archives’ General Issue do not neatly apply to non–text–based traditional or defined user community, Should subsection 108(i) be amended works. In the context of section 108, is in order to deter online shopping for to expand the application of subsections one song on an album equivalent to an user copies? If so, how should a user (d) and (e) to any non–text–based works, article in a journal? Is one photograph community be defined for these or to any text–based works that an entire work by itself or part of a purposes? incorporate musical or audiovisual larger copyrighted compilation? What if 7. Should subsections (d) and (e) works? the song or photograph is available be amended to clarify that interlibrary Background individually? In addition, business As noted in the background to Topic loan transactions of digital copies models used to market and distribute A above, subsection (i) excludes most require the mediation of a library or content may be affected differently categories of non–text–based works archives on both ends, and to not permit depending on the media. Given evolving from the exceptions provided to direct electronic requests from, and/or online entertainment business models, libraries and archives under subsections delivery to, the user from another the ability to make and/or distribute library or archives? (d) and (e). Questions have been raised as to why digital copies could have different 8. In cases where no physical effects on markets for recorded sound object is provided to the user, does it this exclusion was written into the law. The relevant House, Senate, and and film, for instance, than on markets make sense to retain the requirement for text–based materials. Each of the that ‘‘the copy or phonorecord becomes Conference Reports are silent on the matter, beyond the House Report’s issues raised previously in Topic A the property of the user’’? 17 U.S.C. should be reconsidered in light of non– 108(d)(1) and (e)(1). In the digital emphasizing that libraries and archives are free to avail themselves of the text–based media, as it is possible that context, would it be more appropriate to views may change depending on the instead prohibit libraries and archives section 107 fair use factors in copying media. from using digital copies of works non–text–based materials for users. See Specific Questions copied under subsections (d) and (e) to H.R. Rep. No. 94–1476, at 78 (1976). enlarge their collections or as source One likely reason for the exclusion is 1. Should any or all of the copies for fulfilling future requests? that the principal copying device of subsection (i) exclusions of certain 9. Because there is a growing concern in 1976, when section 108 was categories of works from the application market for articles and other portions of enacted, was the photocopier. Most of the subsection (d) and (e) exceptions copyrighted works, should a provision libraries and archives did not possess be eliminated? What are the concerns be added to subsection (d), similar to the technology to make quality copies of presented by modifying the subsection that in subsection (e), requiring libraries non–text–based works and so may not (i) exclusions, and how should they be and archives to first determine on the have pressed for the right to do so. addressed? basis of a reasonable investigation that As more material is generated in 2. Would the ability of libraries a copy of a requested item cannot be digital media that blurs the lines and archives to make and/or distribute readily obtained at a fair price before between traditional format types, digital copies have additional or creating a copy of a portion of a work subsection (i)’s exclusion of most non– different effects on markets for non– in response to a patron’s request? Does text–based categories of works is being text–based works than for text–based the requirement, whether as applied to called into question. Increasingly, works works? If so, should conditions be subsection (e) now or if applied to are produced in multimedia formats, added to address these differences? For subsection (d), need to be revised to including some traditionally text–based example: Should digital copies of visual clarify whether a copy of the work works, such as presentations, papers, works be limited to diminished available for license by the library or and journals. It has been argued that resolution thumbnails, as opposed to a archives, but not for purchase, qualifies excluding these categories of works ‘‘small portion’’ of the work? Should as one that can be ‘‘obtained’’? from some accommodation under persistent identifiers be required to 10. Should the Study Group be subsections (d) and (e) hampers identify the copy of a visual work and looking into recommendations for scholarly access to a critical and any progeny as one made by a library or revising the CONTU guidelines on growing body of intellectual and archives under section 108, and stating interlibrary loan? Should there be creative material. In addition, that no further distribution is guidelines applicable to works older restrictions on copies for users of non– authorized? Should subsection (d) and than five years? Should the record text–based works are seen by some as (e) user copies of audiovisual works and keeping guideline apply to the placing a greater burden on researchers, sound recordings, if delivered borrowing as well as the lending library scholars, and students of music, film, electronically, be restricted to delivery in order to help administer a broader and the visual arts than on those who by streaming in order to prevent exception? Should additional guidelines study text–based works, in that there are downloading and further distribution? If be developed to set limits on the greater obstacles to obtaining research so, how might scholarly practices number of copies of a work or copies materials. requiring the retention of source of the same portion of a work that can Eliminating the subsection (i) materials be accommodated? be made directly for users, as the exclusions would raise a number of 3. If the exclusions in subsection CONTU guidelines suggest for challenges, however. The subsection (d) (i) were eliminated in whole or in part, interlibrary loan copies? Are these and (e) exceptions were drafted to should there be different restrictions on records currently accessible by people address text–based works; there are making direct copies for users of non– outside of the library community? legitimate questions as to whether the text–based works than on making Should they be? provisions’ respective conditions can be interlibrary loan copies? Would 11. Should separate rules apply to applied successfully to non–text–based applying the interlibrary loan international electronic interlibrary loan materials in a digital environment. For framework to non–text–based works

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require any adjustments to the CONTU rights may be implicated in accessing Specific Questions guidelines? these works. 1. What types of unlicensed 4. If the subsection (i) exclusions The Study Group seeks input on how digital materials are libraries and were not eliminated, should an significant an issue this is whether archives acquiring now, or are likely to additional exception be added to permit libraries and archives have and are acquire in the foreseeable future? How the application of subsections (d) and likely in the future to have a sufficient will these materials be acquired? Is the (e) to musical or audiovisual works number of unlicensed digital works to quantity of unlicensed digital material embedded in textual works? Would merit legislative attention. that libraries and archives are likely to doing so address the needs of scholars, The European Union’s Directive on acquire significant enough to warrant researchers, and students for increased the Harmonization of Certain Aspects of express exceptions for making access to copies of such works? Copyright and Related Rights in the temporary copies incidental to access? TOPIC C: LIMITATIONS ON ACCESS Information Society provides one potential model for addressing these 2. What uses should a library or TO ELECTRONIC COPIES, INCLUDING archives be able to make of a lawfully VIA PERFORMANCE OR DISPLAY questions. It directs that member states may enact copyright exceptions acquired, unlicensed digital copy of a General Issue work? Is the EU model a good one Should section 108 be amended to permitting publicly accessible libraries, museums, educational institutions, and namely that access be limited to permit libraries and archives to make dedicated terminals on the premises of temporary and incidental copies of archives to communicate or make available ‘‘for the purpose of research or the library or archives to one user at a unlicensed digital works in order to time for each copy lawfully acquired? provide user access to these works? private study, to individual members of the public by dedicated terminals on Or could security be ensured through Should any exceptions be added to the other measures, such as technological copyright law to permit limited public the[ir] premises . . . works and other subject–matter not subject to purchase protections? Should simultaneous use performance and display in certain by more than one user ever be circumstances in order to allow for user or licensing terms which are contained in their collections.’’ Council Directive permitted? Should remote access ever access to unlicensed digital works? be permitted for unlicensed digital Background 2001/29/EC, art. 5(3)(n), 2001 O.J. (L 167) 10, 17. Would a similar exception works? If so, under what conditions? Access to digital materials be appropriate in the U.S? 3. Are there implied licenses to particularly those that exist in purely Certain digital works can be accessed use and provide access to these types of electronic form is generally granted only through display or performance. In works? If so, what are the parameters of pursuant to a license. There are, providing access to these works, such implied licenses for users? What however, instances in which libraries libraries and archives that are open to about for library and archives staff? and archives have lawfully obtained the public (as they must be to qualify 4. Do libraries and archives copies of electronic materials for which under subsection 108(a)) may need to currently rely on implied licenses to they have no license, and it is expected publicly display or perform the works. access unlicensed content or do they that this may increasingly be the case. For instance, if a library, archives, or rely instead on fair use? Is it current Examples include donated personal or museum publicly exhibits a work of library and archives practice to attempt business files such as e–mails or other audiovisual art, a motion picture, or a to provide access to unlicensed digital documents (where the donor agreement musical work, the exhibition would works in a way that mirrors the type of is silent on use rights), electronic normally constitute a public access provided to similar analog manuscripts such as drafts of novels or performance. There are currently no works? notes, and legally captured Web sites. express exceptions in section 108 that The mediation of a computer or other 5. Are the considerations different address public performance or display. machine is necessary to perceive these for digital works embedded in tangible Section 109(c) of the Copyright Act works, and in the course of rendering media, such as DVDs or CDs, than for provides an applicable exception to the the works in perceivable form, those acquired in purely electronic display right: temporary and incidental copies are form? Under which circumstances [T]he owner of a particular copy lawfully should libraries and archives be made. Libraries and archives have no made under this title, or any person clear guidance on whether they may authorized by such owner, is entitled, permitted to make server copies in order make the copies incidental or without the authority of the copyright to provide access? Should the law otherwise required to perceive digital owners, to display that copy publicly, permit back–up copies to be made? works. either directly or by the projection of no 6. Should conditions on providing In some cases, a license to make more than one image at a time, to access to unlicensed digital works be viewers present at the place where the implemented differently based upon the temporary, incidental copies of copy is located. unlicensed digital works can be category or media of work (text, audio, implied. For instance, it is commonly 17 U.S.C. 109(c) (2003). This provision film, photographs, etc.)? accepted that there are implied rights to gives libraries and archives some leeway 7. Are public performance and/or make the incidental copies necessary to in displaying copies that they own, but display rights necessarily exercised in play a DVD or CD on a computer. The it does not address the issues of any providing access to certain unlicensed question is what, if any, implied rights incidental copies that may be necessary digital materials? For what types of exist for libraries and archives to in order to achieve this display. There works? Does the copyright law need to facilitate access to other kinds of is no parallel exception in the Copyright be amended to address the need to make materials? What about works acquired Act for public performances. incidental copies in order to display an in purely electronic form that are stored Note that for purposes of this electronic work? Should an exception on a library’s or archives’ servers from discussion it is assumed that where the be added for libraries and archives to which they must be copied and work was acquired through a license, also perform unlicensed electronic transmitted to a terminal for user the terms of the license govern and works in certain circumstances, similar access? In addition, display and/or trump the section 108 exceptions, per to the 109(c) exception for display? If so, performance as well as reproduction subsection 108(f)(4). under what conditions?

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4. Procedure for Submitting be effective due to delays in processing Transportation Safety Board Requests to Participate in Roundtable receipt. Performance Review Board. Discussions and for Submitting Written If by e–mail (preferred): Send to the e– FOR FURTHER INFORMATION CONTACT: Anh Comments. mail address [email protected] a Bolles, Chief, Human Resources message containing the information Requests to Participate in Roundtable Division, Office of Administration, required above for the request to Discussions. The roundtable discussions National Transportation Safety Board, participate or the written submission, as will be open to the public. Persons 490 L’Enfant Plaza, SW., Washington, applicable. The summary of issues (for wishing to participate in the discussions DC 20594–0001, (202) 314–6355. the request to participate in the must submit a written request to the SUPPLEMENTARY INFORMATION: Section roundtable discussion) or statement (for Section 108 Study Group. The request to 4314(c)(1) through (5) of Title 5, United the written comments), as applicable, participate must include the following States Code requires each agency to may be included in the text of the information: (1) the name of the person establish, in accordance with message, or may be sent as an regulations prescribed by the Office of desiring to participate; (2) the attachment. If sent as an attachment, the organization(s) represented by that Personnel Management, one or more summary of issues or written statement SES Performance Review Boards. The person, if any; (3) contact information must be in a single file in either: (1) (address, telephone, telefax, and e– board reviews and evaluates the initial Adobe Portable Document File (PDF) appraisal of a senior executive’s mail); and (4) a written summary of no format, (2) Microsoft Word version 2000 more than four pages identifying, in performance by the supervisor, and or earlier, (3) WordPerfect version 9.0 or considers recommendations to the order of preference, in which of the earlier, (4) Rich Text File (RTF) format, three general roundtable topic areas the appointing authority regarding the or (5) ASCII text file format. performance of the senior executive. participant (or his or her organization) If by hand delivery by a private party would most like to participate and the The following have been designated or a commercial, non–government as members of the Performance Review specific questions the participant courier or messenger: Deliver to the wishes to address in each topic area. Board of the National Transportation address listed above a cover letter with Safety Board. This list published Space and time constraints may the information required, and include require that participation be limited in previously on Friday, November 24, two copies of the summary of issues or 2006. However, a change to membership one or more of the topic areas, and it is written statement, as applicable, each likely that not all requests to participate has occurred since that time and here is on a write–protected 3.5–inch diskette the updated membership list. can be accommodated. Identification of or CD–ROM, labeled with the legal The Honorable Robert L. Sumwalt, Vice the desired topic areas in order of name of the person making the Chairman, National Transportation preference will help the Study Group to submission and, if applicable, his or her Safety Board; PRB Chair. ensure that participants will be heard in title and organization. The document the area(s) of interest most critical to The Honorable Deborah A.P.hersman, itself must be in a single file in either Member, National Transportation them. The Study Group will notify each (1) Adobe Portable Document File (PDF) participant in advance of his or her Safety Board. format, (2) Microsoft Word Version 2000 Steven Goldberg, Chief Financial designated topic area(s). or earlier, (3) WordPerfect Version 9 or Officer, National Transportation Note also for those who wish to attend earlier, (4) Rich Text File (RTF) format, Safety Board. but not participate in the roundtables or (5) ASCII text file format. Lowell Martin, Deputy Executive that space is limited. Seats will be Anyone who is unable to submit a Director, Consumer Products Safety available on a first–come, first–served comment or request to participate in Commission. basis. All discussions will be electronic form (either through e–mail Frank Battle, Deputy Director of transcribed, and transcripts or hand delivery of a diskette or CD– Administration, National Labor subsequently made available on the ROM) should submit, with a cover letter Relations Board. Section 108 Study Group Web site containing the information required Joseph G. Osterman,Managing Director, (http://www.loc.gov/section108). above, an original and three paper National Transportation Safety Board. Written Comments. Written copies of the summary of issues (for the comments must include the following Dated: November 29, 2006 request to participate in the roundtable Vicky D’Onofrio, information: (1) the name of the person discussions) or statement (for the Federal Register Coordinator. making the submission; (2) the written comments) by hand to the organization(s) represented by that appropriate address listed above. [FR Doc. 06–9502 Filed 12–1–06; 8:45 am] person, if any; (3) contact information BILLING CODE 7533–01–M Dated: November 28, 2006 (address, telephone, telefax, and e– mail); and (4) a statement of no more Marybeth Peters, than 10 pages, responding to any of the . NUCLEAR REGULATORY topic areas or specific questions in this [FR Doc. E6–20480 Filed 12–1–06; 8:45 am] COMMISSION notice. BILLING CODE 1410–21–F Submission of Both Requests to Advisory Committee on Reactor Participate in Roundtable Discussions Safeguards (ACRS) and Written Comments. In the case of NATIONAL TRANSPORTATION Meeting of the Acrs Subcommittee on submitting a request to participate in the SAFETY BOARD Reliability and Probabilistic Risk roundtable discussions or of submitting Assessment; Notice of Meeting written comments, submission should SES Performance Review Board be made to the Section 108 Study Group AGENCY: National Transportation Safety The ACRS Subcommittee on by e–mail (preferred) or by hand Board. Reliability and Probabilistic Risk delivery by a commercial courier or by ACTION: Notice. Assessment (PRA) will hold a meeting a private party to the address listed on December 14 and 15, 2006, Room T– above. Submission by overnight SUMMARY: Notice is hereby given of the 2B1, 11545 Rockville Pike, Rockville, delivery service or regular mail will not appointment of members of the National Maryland.

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