Federal Register / Vol. 79, No. 37 / Tuesday, February 25, 2014 / Notices 10571 

1WIPO Copyright Treaty art. 8, Dec. 20, 1996, 36 

I.L.M. 65 (‘‘Without prejudice to the provisions of 

Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 

14(1)(ii) and 14bis(1) of the Berne Convention, 

authors of literary and artistic works shall enjoy the 

exclusive right of authorizing any communication 

to the public of their works, by wire or wireless 

means, including the making available to the public 

of their works in such a way that members of the 

public may access these works from a place and at 

a time individually chosen by them.’’) (text of 

Agreed Statement omitted). WCT Article 8 is 

entitled ‘‘Right of Communication to the Public.’’ 

2WIPO Performances and Phonograms Treaty 

arts. 10, 14, Dec. 20, 1996, 36 I.L.M. 76. Articles 10 

and 14 provide the making available right to 

performers whose performances are fixed in sound 

recordings (phonograms) and to producers of sound 

recordings. The separate ‘‘communication to the 

public’’ provision in the WPPT (Article 15) involves 

a right of remuneration, and is not the same 

‘‘communication to the public’’ right found in the 

Berne Convention and WCT Article 8. 

3This flexible approach is known as the 

‘‘umbrella solution.’’ See Miha ́ly Ficsor, World 

Intellectual Property Organization, Guide to the 

Copyright and Related Rights Treaties Administered 

by WIPO and Glossary of Copyright and Related 

Rights Terms 209 (2003) (WCT Article 8’s umbrella 

solution allows treaty members to implement the 

making available right through ‘‘a right other than 

the right of communication to the public or through 

the combination of different rights’’); id. at 247–48 

(WPPT Articles 10 and 14 apply umbrella solution 

‘‘in a fully fledged manner incorporating the neutral 

description of interactive digital transmissions 

directly’’). 

4Public Law 105–304, 112 Stat. 2860 (1998). 

5See H.R. Rep. No. 105–551, at 9 (1998) (‘‘The 

treaties do not require any change in the substance 

of copyright rights or exceptions in U.S. law.’’); see 

also WIPO Copyright Treaties Implementation Act 

and Online Copyright Liability Limitation Act: 

Hearing on H.R. 2281 & H.R. 2180 Before the H.R. 

Subcomm. on Courts and Intellectual Property of 

the Comm. on the Judiciary, 105th Cong. 43 (1997) 

(Register of Copyrights advised Congress that there 

was ‘‘no need to alter the nature and scope of the 

copyrights and exceptions, or change the 

substantive balance of rights embodied in the 

Copyright Act’’). More recent research into the 

legislative history of U.S. law by Professor David 

Nimmer and Professor Peter Menell has provided 

additional textual support regarding Congress’s 

views on the breadth of existing U.S. law and the 

broad scope of the making available right. See 

Melville B. Nimmer & David Nimmer, 2 Nimmer On 

Copyright § 8.11 (2012); Peter S. Menell, In Search 

of Copyright’s Lost Ark: Interpreting the Right to 

Distribute in the Internet Age, 59 J. Copyright Soc’y 

U.S.A. 1, 50–51 (2011). 

6Piracy of Intellectual Property on Peer-to-Peer 

Networks: Hearing Before the Subcomm. on Courts, 

the Internet, and Intellectual Property of the H. 

Comm. on the Judiciary, 107th Cong. 114 (2002) 

(letter from Marybeth Peters, Register of Copyrights, 

United States Copyright Office). 

7See Internet Policy Task Force, U.S. Dep’t of 

Commerce, Copyright Policy, Creativity, and 

Innovation in the Digital Economy 15–16 (2013), 

available at http://www.uspto.gov/news/

publications/copyrightgreenpaper.pdf (noting that 

Copyright Act’s distribution right was intended to 

include ‘‘the mere offering of copies to the public’’ 

and that contrary judicial decisions ‘‘predate . . . 

Continued 

LIBRARY OF CONGRESS 

United States Copyright Office 

[Docket No. 2014–2] 

Study on the Right of Making 

Available; Comments and Public 

Roundtable 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Request for comments and 

notice of public roundtable. 

SUMMARY: The United States Copyright 

Office is undertaking a study at the 

request of Congress to assess the state of 

U.S. law recognizing and protecting 

‘‘making available’’ and 

‘‘communication to the public’’ rights 

for copyright holders. The Office is 

requesting public comments on how the 

existing bundle of rights under Title 17 

covers the making available and 

communication to the public rights, 

how foreign laws have addressed such 

rights, and the feasibility and necessity 

of amending U.S. law to strengthen or 

clarify our law in this area. The 

Copyright Office also will hold a public 

roundtable to discuss these topics and 

to provide a forum for interested parties 

to address the issues raised by the 

comments received. 

DATES: Comments are due on or before 

April 4, 2014. The public roundtable 

will be held on May 5, 2014, from 9:00 

a.m. to 5:00 p.m. EDT. 

ADDRESSES: All comments should be 

submitted electronically. To submit 

comments, please visit http://www.

copyright.gov/docs/making_available/. 

The Web site interface requires 

submitters to complete a form 

specifying name and organization, as 

applicable, and to upload comments as 

an attachment via a browser button. To 

meet accessibility standards, 

commenting parties must upload 

comments in a single file not to exceed 

six megabytes (‘‘MB’’) in one of the 

following formats: The Portable 

Document File (‘‘PDF’’) format that 

contains searchable, accessible text (not 

an image); Microsoft Word; 

WordPerfect; Rich Text Format (‘‘RTF’’); 

or ASCII text file format (not a scanned 

document). The form and face of the 

comments must include both the name 

of the submitter and organization. The 

Office will post all comments publicly 

on the Office’s Web site exactly as they 

are received, along with names and 

organizations. 

The public roundtable will take place 

in the Copyright Office Hearing Room, 

LM–408 of the Madison Building of the 

Library of Congress, 101 Independence 

Avenue SE., Washington, DC 20559. 

The Copyright Office strongly prefers 

that requests for participation be 

submitted electronically. A 

participation request form will be 

posted on the Copyright Office Web site 

at http://www.copyright.gov/docs/

making_available/ on or about April 7, 

2014. If electronic submission of 

comments or requests for participation 

is not feasible, please contact the Office 

at 202–707–1027 for special 

instructions. 

FOR FURTHER INFORMATION CONTACT: 

Maria Strong, Senior Counsel for Policy 

and International Affairs, by telephone 

at 202–707–1027 or by email at 

mstrong@loc.gov, or Kevin Amer, 

Counsel for Policy and International 

Affairs, by telephone at 202–707–1027 

or by email at kamer@loc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The WIPO Internet Treaties—the 

WIPO Copyright Treaty (‘‘WCT’’) 1 and 

the WIPO Performances and 

Phonograms Treaty (‘‘WPPT’’) 2— 

require member states to recognize the 

rights of ‘‘making available’’ and 

‘‘communication to the public’’ in their 

national laws. The treaties obligate 

member states to give authors of works, 

producers of sound recordings, and 

performers whose performances are 

fixed in sound recordings the exclusive 

right to authorize the transmission of 

their works and sound recordings, 

including through interactive platforms, 

such as the Internet, where the public 

can choose where and when to access 

them. In the specific context of 

interactive, on-demand situations, WCT 

Article 8 and WPPT Articles 10 and 14 

provide treaty members with flexibility 

in the manner in which they implement 

this right.3

The United States implemented the 

WIPO Internet Treaties through the 

Digital Millennium Copyright Act 

(‘‘DMCA’’) in 1998.4 Based on advice 

received from the Copyright Office, 

among many other experts, Congress did 

not amend U.S. law to include explicit 

references to ‘‘making available’’ and 

‘‘communication to the public,’’ 

concluding that Title 17 already 

provided those rights.5 As former 

Register of Copyrights Marybeth Peters 

observed: 

While Section 106 of the U.S. Copyright 

Act does not specifically include anything 

called a ‘‘making available’’ right, the 

activities involved in making a work 

available are covered under the exclusive 

rights of reproduction, distribution, public 

display and/or public performance. . . . 

Which of these rights are invoked in any 

given context will depend on the nature of 

the ‘‘making available’’ activity.6

Indeed, both Congress and the Executive 

Branch have continued to support this 

view since the enactment of the DMCA.7


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10572 Federal Register / Vol. 79, No. 37 / Tuesday, February 25, 2014 / Notices 

recent academic scholarship’’ on ‘‘previously 

unanalyzed legislative history’’). 

8The Section 106 distribution right is far broader 

than the new distribution right afforded under the 

WIPO Treaties (WCT art. 6 and WPPT arts. 8, 12). 

9 991 F.2d 426, 430 (8th Cir. 1993) (‘‘[W]e cannot 

conclude that an allegation that National ‘permitted 

the use’ necessarily amounts to an allegation of the 

actual distribution of a copy of the program.’’). 

10 118 F.3d 199, 202 (4th Cir. 1997). 

11 Id. at 203. 

12 Id. 

13 Diversey v. Schmidly, No. 13–2058, 2013 U.S. 

App. LEXIS 25506, at *12–13 (10th Cir. Dec. 23, 

2013). 

14 Id. at *13–14 n.7. 

15A&M Records, Inc. v. Napster, Inc., 239 F.3d 

1004, 1014 (9th Cir. 2001); see also Universal City 

Studios Prods. LLLP v. Bigwood, 441 F. Supp. 2d 

185, 190 (D. Me. 2006) (‘‘[B]y using KaZaA to make 

copies of the Motion Pictures available to thousands 

of people over the internet, Defendant violated 

Plaintiffs’ exclusive right to distribute the Motion 

Pictures.’’); Warner Bros. Records, Inc. v. Payne, 

2006 U.S. Dist. LEXIS 65765, at *8 (W.D. Tex. 2006) 

(‘‘Listing unauthorized copies of sound recordings 

using an online file-sharing system constitutes an 

offer to distribute those works, thereby violating a 

copyright owner’s exclusive right of distribution.’’). 

16 542 F. Supp. 2d 153, 168 (D. Mass. 2008) 

(quoting Hotaling, 118 F.3d at 203). 

17 Id. at 169. 

18See Capitol Records, Inc. v. Thomas, 579 F. 

Supp. 2d 1210, 1218 (D. Minn. 2008) (concluding 

it was bound by the holding in National Car and 

stating that although ‘‘the Copyright Act does not 

offer a uniform definition of ‘distribution’ . . . 

Congress’s choice to not include offers to do the 

enumerated acts or the making available of the work 

indicates its intent that an actual distribution or 

dissemination is required in § 106(3)’’); Atlantic 

Recording Corp. v. Howell, 554 F. Supp. 2d 976, 983 

(D. Ariz. 2008) (‘‘The statute provides copyright 

holders with the exclusive right to distribute 

‘copies’ of their works to the public ‘by sale or other 

transfer of ownership, or by rental, lease, or 

lending.’ Unless a copy of the work changes hands 

in one of the designated ways, a ‘distribution’ under 

§ 106(3) has not taken place. Merely making an 

unauthorized copy of a copyrighted work available 

to the public does not violate a copyright holder’s 

exclusive right of distribution.’’). 

19As noted, in addition to the distribution right, 

the right of making available also implicates the 

rights of reproduction, public performance, and 

public display. The Supreme Court recently grated 

certiorari in a case involving the scope of the public 

performance right in the context of online streaming 

of broadcast television programs. See Am. Broad. 

Cos., Inc. v. Aereo, Inc., 82 U.S.L.W. 3241 (U.S. Jan. 

10, 2014) (No. 13–461). Oral argument is scheduled 

for April 22, 2014. 

20See The Scope of Copyright Protection: Hearing 

Before the Subcomm. on Intellectual Property, 

Courts, & the Internet of the H. Comm. on the 

Judiciary, 113th Cong. (2014), available at http://

judiciary.house.gov/index.cfm/2014/1/the-scope-ofcopyright-protection. 

The lack of explicit references to these 

rights in U.S. law, however, has led 

some courts and commentators to 

express uncertainty over how the 

existing rights in Title 17 may apply to 

various methods of making of 

copyrighted works available to the 

public, including in the digital 

environment. Especially in the Internet 

era, in any given case several of these 

rights (reproduction, distribution, 

public performance, and public display) 

may be at issue, depending on the facts 

involved. 

Courts, academics, and practitioners 

particularly have focused on the scope 

of the distribution right under Section 

106 and have debated whether it fully 

encompasses the making available of a 

copyrighted work without proof of an 

actual distribution.8 For example, two 

early Eighth and Fourth Circuit cases 

discussing making available yielded 

conflicting results. The Eighth Circuit in 

National Car Rental System, Inc. v. 

Computer Associates International, Inc. 

rejected the notion that making a work 

available without more violated the 

distribution right.9 The principal 

authority to the contrary is the Fourth 

Circuit’s decision in Hotaling v. Church 

of Jesus Christ of Latter-Day Saints, in 

which the defendants made several 

unauthorized microfiche copies of 

genealogical research materials, one of 

which ended up in a library 

collection.10 The library did not keep 

records of public use, and therefore 

there was no evidence of the copy being 

loaned to the public.11 The court found 

that making a work available to the 

public constituted distribution because 

‘‘[w]hen a public library adds a work to 

its collection, lists the work in its index 

or catalog system, and makes the work 

available to the borrowing or browsing 

public, it has completed all the steps 

necessary for distribution to the 

public.’’ 12

A recent Tenth Circuit decision, 

Diversey v. Schmidly,13 followed 

Hotaling’s conclusion that making a 

work available to the public constitutes 

distribution under Section 106(3). 

Diversey involved a similar situation to 

Hotaling and addressed a library 

lending an unauthorized copy of a work 

to the public. The Tenth Circuit noted, 

however, that there has not been 

consensus on Hotaling’s applicability to 

Internet file-sharing cases, and the court 

avoided extending its holding to those 

digital situations.14

Other courts have addressed the scope 

of the distribution right in the online 

context and have reached similarly 

conflicting results. The Ninth Circuit in 

A&M Records v. Napster, Inc. 

concluded that distribution 

encompasses ‘‘making available,’’ 

observing that ‘‘Napster users who 

upload file names to the search index 

for others to copy violate plaintiffs’ 

distribution rights.’’ 15 Other courts have 

disagreed and required actual 

distribution. Thus, the court in LondonSire Records, Inc. v. Doe 1, which 

considered infringement of the 

distribution right through peer-to-peer 

file sharing, cast doubt on Hotaling, 

asserting that ‘‘[m]erely because the 

defendant has ‘completed all the steps 

necessary for distribution’ does not 

necessarily mean that a distribution has 

actually occurred.’’ 16 Notably, however, 

while the London-Sire court required 

actual distribution, it did not require 

direct evidence of dissemination over 

peer-to-peer networks, holding instead 

that a reasonable fact-finder may infer 

that distribution actually took place 

where the defendant has completed all 

necessary steps for a public 

distribution.17 Other courts have also 

relied on the language of Section 106(3) 

to require actual distribution in order to 

find a violation of that right.18

In sum, while Congress and the 

Copyright Office have agreed that U.S. 

law covers the making available right of 

the WCT, courts have encountered 

difficulties in evaluating the scope of 

this interactive right, and the level of 

evidence needed to establish liability, in 

the specific cases before them.19

In a letter dated December 19, 2013, 

Representative Melvin L. Watt requested 

that the Copyright Office ‘‘assess the 

state of U.S. law recognizing and 

protecting ‘making available’ and 

‘communicating to the public’ rights for 

copyright holders. . . . In light of the 

rapidly changing technology and 

inconsistency in the various court 

discussions of these rights . . . it is 

important that the Copyright Office 

study the current state of the law in the 

United States.’’ Specifically, 

Representative Watt asked the Office to 

review and assess: ‘‘(1) How the existing 

bundle of exclusive rights under Title 

17 covers the making available and 

communication to the public rights in 

the context of digital on-demand 

transmissions such as peer-to-peer 

networks, streaming services, and music 

downloads, as well as more broadly in 

the digital environment; (2) how foreign 

laws have interpreted and implemented 

the relevant provisions of the WIPO 

Internet Treaties; and (3) the feasibility 

and necessity of amending U.S. law to 

strengthen or clarify our law in this 

area.’’ 

On January 14, 2014, the House 

Judiciary Committee’s Subcommittee on 

Intellectual Property, Competition, and 

the Internet held a hearing during which 

two witnesses were asked to address the 

issue of the making available right.20

These witnesses expressed a variety of 

views on whether current U.S. copyright 

law provides sufficient clarity on this 

issue and whether adding an explicit 

making available right to Title 17 would 


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Federal Register / Vol. 79, No. 37 / Tuesday, February 25, 2014 / Notices 10573 

21See Statement of David Nimmer, Professor, 

UCLA School of Law, The Scope of Copyright 

Protection, supra note 20 (‘‘Nimmer Statement’’); 

Statement of Glynn S. Lunney, Jr., Professor, Tulane 

University School of Law, The Scope of Copyright 

Protection, supra note 20 (‘‘Lunney Statement’’). 

These witness statements are available at http://

docs.house.gov/Committee/Calendar/

ByEvent.aspx?EventID=101642. 

22See Nimmer Statement at 2–3; Lunney 

Statement at 1–4. 

be beneficial.21 They agreed, however, 

that current law is properly construed to 

provide such protection.22

II. Request for Comment 

In light of uncertainty among some 

courts regarding the nature and scope of 

the making available and 

communication to the public rights, and 

to facilitate the study requested by 

Representative Watt, the Copyright 

Office seeks public comments on the 

three main issues listed above. The 

Office poses additional questions on 

these three topics below, and requests 

that commenters identify the questions 

they are answering in their responses. 

1. Existing Exclusive Rights Under Title 

17 

a. How does the existing bundle of 

exclusive rights currently in Title 17 

cover the making available and 

communication to the public rights in 

the context of digital on-demand 

transmissions such as peer-to-peer 

networks, streaming services, and 

downloads of copyrighted content, as 

well as more broadly in the digital 

environment? 

b. Do judicial opinions interpreting 

Section 106 and the making available 

right in the framework of tangible works 

provide sufficient guidance for the 

digital realm? 

2. Foreign Implementation and 

Interpretation of the WIPO Internet 

Treaties 

a. How have foreign laws 

implemented the making available right 

(as found in WCT Article 8 and WPPT 

Articles 10 and 14)? Has such 

implementation provided more or less 

legal clarity in those countries in the 

context of digital distribution of 

copyrighted works? 

b. How have courts in foreign 

countries evaluated their national 

implementation of the making available 

right in these two WIPO treaties? Are 

there any specific case results or related 

legislative components that might 

present attractive options for possible 

congressional consideration? 

3. Possible Changes to U.S. Law 

a. If Congress continues to determine 

that the Section 106 exclusive rights 

provide a making available right in the 

digital environment, is there a need for 

Congress to take any additional steps to 

clarify the law to avoid potential 

conflicting outcomes in future 

litigation? Why or why not? 

b. If Congress concludes that Section 

106 requires further clarification of the 

scope of the making available right in 

the digital environment, how should the 

law be amended to incorporate this right 

more explicitly? 

c. Would adding an explicit ‘‘making 

available’’ right significantly broaden 

the scope of copyright protection 

beyond what it is today? Why or why 

not? Would existing rights in Section 

106 also have to be recalibrated? 

d. Would any amendment to the 

‘‘making available’’ right in Title 17 

raise any First Amendment concerns? If 

so, how can any potential issues in this 

area be avoided? 

e. If an explicit right is added, what, 

if any, corresponding exceptions or 

limitations should be considered for 

addition to the copyright law? 

If there are any pertinent issues not 

discussed above, the Office encourages 

interested parties to raise those matters 

in their comments. 

III. Public Roundtable 

On May 5, 2014, the Copyright Office 

will hold a public roundtable to hear 

stakeholder views and to initiate 

discussion of the three topics identified 

above. The agenda and the process for 

submitting requests to participate in the 

public roundtable will be available on 

the Copyright Office Web site on or 

about April 7, 2014. 

IV. Requests To Participate 

Requests to participate in the public 

roundtable should be submitted online 

at http://www.copyright.gov/docs/

making_available/. Nonparticipants 

who wish to attend and observe the 

discussion should note that seating is 

limited and, for nonparticipants, will be 

available on a first come, first served 

basis. 

Dated: February 20, 2014. 

Maria A. Pallante, 

Register of Copyrights. 

[FR Doc. 2014–04104 Filed 2–24–14; 8:45 am] 

BILLING CODE 1410–30–P 

MILITARY COMPENSATION AND 

RETIREMENT MODERNIZATION 

COMMISSION 

Cancellation of a Meeting of the 

Military Compensation and Retirement 

Modernization Commission 

AGENCY: Military Compensation and 

Retirement Modernization Commission. 

ACTION: Notice of cancellation of public 

meetings and town hall meeting. 

SUMMARY: This notice cancels the 

hearings and town hall that were to be 

held on Tuesday, February 25, 2014. 

DATES: The public hearings and town 

hall originally scheduled for Tuesday, 

February 25, 2014, are cancelled. 

ADDRESSES: The hearings and town hall 

were to be held Tuesday, February 25, 

2014 at the Embassy Suites Fayetteville 

Fort Bragg, 4760 Lake Valley Drive, 

Fayetteville, North Carolina 28303. 

FOR FURTHER INFORMATION CONTACT: 

Christopher Nuneviller, Associate 

Director, Military Compensation and 

Retirement Modernization Commission, 

P.O. Box 13170, Arlington VA 22209, 

telephone 703–692–2080, fax 703–697– 

8330, email christopher.nuneviller@

mcrmc.gov. 

SUPPLEMENTARY INFORMATION: A notice 

of public hearings and town hall 

meeting that appeared in the Federal 

Register on February 18, 2014 (79 FR 

9285) announced that the Military 

Compensation and Retirement 

Modernization Commission 

(Commission) was to hold public 

hearings and a town hall meeting on 

Tuesday, February 25, 2014, to seek the 

views of service members, retirees, their 

beneficiaries and other interested 

parties regarding pay, retirement, health 

benefits and quality of life programs of 

the Uniformed Services. The 

Commission was to also hear from 

senior commanders of local military 

commands and their senior enlisted 

advisors, unit commanders and their 

family support groups, local medical 

and education community 

representatives, and other quality of life 

organizations. 

The public hearings and town hall 

meeting will be rescheduled for a later 

date. 

Christopher Nuneviller, 

Associate Director, Administration and 

Operations. 

[FR Doc. 2014–04126 Filed 2–24–14; 8:45 am] 

BILLING CODE P 


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