Federal Register / Vol. 86, No. 168 / Thursday, September 2, 2021 / Proposed Rules 49273 

1Public Law 116–260, sec. 212, 134 Stat. 1182, 

2176 (2020). 

2 86 FR 16156, 16161 (Mar. 26, 2021). Comments 

received in response to the March 26, 2021 NOI are 

available at https://www.regulations.gov/document/ 

COLC-2021-0001-0001/comment. References to 

these comments are by party name (abbreviated 

where appropriate), followed by ‘‘Initial NOI 

Comments’’ or ‘‘Reply NOI Comments,’’ as 

appropriate. 

3 17 U.S.C. 1506(aa)(1). 

4 Id. at 1506(aa)(2)(B). 

5 Id. at 1506(aa)(3)(A). 

6 Id. at 1506(aa)(3)(B). The CASE Act’s legislative 

history does not discuss the library and archives 

opt-out provision. See generally S. Rep. No. 116– 

105 (2019); H.R. Rep. No. 116–252 (2019). Note, the 

CASE Act’s legislative history cited is for S. 1273, 

116th Cong. (2019) and H.R. 2426, 116th Cong. 

(2019), the CASE Act of 2019, bills largely identical 

to the CASE Act of 2020, with the notable exception 

that these earlier bills did not contain the libraries 

and archives opt-out provision. 

7 17 U.S.C. 108. 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

1 year * * *.’’ Therefore, neither a 

Small Government Agency Plan nor any 

other action is required under UMRA of 

1995. 

Paperwork Reduction Act of 1995 

This action does not impose a new 

collection of information under the 

Paperwork Reduction Act of 1995. 44 

U.S.C. 3501–3521. 

List of Subjects in 21 CFR Part 1308 

Administrative practice and 

procedure, Drug traffic control, 

Reporting and recordkeeping 

requirements. 

For the reasons set out above, DEA 

proposes to further amend 21 CFR part 

1308, which we proposed to amend on 

August 11, 2021 at 86 FR 43983, as 

follows: 

PART 1308—SCHEDULES OF 

CONTROLLED SUBSTANCES 

■ 1. The authority citation for 21 CFR 

part 1308 continues to read as follows: 

Authority: 21 U.S.C. 811, 812, 871(b), 

956(b), unless otherwise noted. 

■ 2. Amend § 1308.11 by redesignating 

paragraph (f)(9) through (f)(11) as (f)(10) 

through (f)(12) and adding new 

paragraph (f)(9) to read as follows: 

§ 1308.1 Schedule I. 

* * * * * 

(f) * * * 

(9) Methiopropamine (N-methyl-1-(thiophen-2-yl)propan-2-amine) ........................................................................................................... 1478 

* * * * * 

Anne Milgram, 

Administrator. 

[FR Doc. 2021–18843 Filed 9–1–21; 8:45 am] 

BILLING CODE 4410–09–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 223 

[Docket No. 2021–4] 

Small Claims Procedures for Library 

and Archives Opt-Outs and Class 

Actions 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The U.S. Copyright Office is 

issuing a notice of proposed rulemaking 

regarding the procedures for libraries 

and archives to opt out of proceedings 

before the Copyright Claims Board 

(‘‘CCB’’) and the procedures for a party 

before the CCB with respect to a class 

action proceeding, under the Copyright 

Alternative in Small-Claims 

Enforcement Act of 2020. The Office 

invites public comments on this 

proposed rule. 

DATES: Comments on the proposed rule 

must be made in writing and received 

by the U.S. Copyright Office no later 

than 11:59 p.m. EDT on October 4, 2021. 

ADDRESSES: For reasons of government 

efficiency, the Copyright Office is using 

the regulations.gov system for the 

submission and posting of public 

comments in this proceeding. All 

comments are therefore to be submitted 

electronically through regulations.gov. 

Specific instructions for submitting 

comments are available on the 

Copyright Office website at https://

www.copyright.gov/rulemaking/caseact-implementation/library-opt-out. If 

electronic submission of comments is 

not feasible due to lack of access to a 

computer and/or the internet, please 

contact the Office using the contact 

information below for special 

instructions. 

FOR FURTHER INFORMATION CONTACT: 

Kevin. R. Amer, Acting General Counsel 

and Associate Register of Copyrights, by 

email at kamer@copyright.gov, or John 

R. Riley, Assistant General Counsel, by 

email at jril@copyright.gov. Each can be 

contacted by telephone at (202) 707– 

8350. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Copyright Alternative in SmallClaims Enforcement (‘‘CASE’’) Act of 

2020 1 directs the Copyright Office to 

establish the Copyright Claims Board 

(‘‘CCB’’ or ‘‘Board’’), a voluntary 

tribunal within the Office comprised of 

three Copyright Claims Officers who 

have the authority to render 

determinations on certain copyright 

disputes with a low economic value. 

This notice of proposed rulemaking is 

being issued subsequent to a 

notification of inquiry (‘‘NOI’’) 

published in the Federal Register on 

March 26, 2021, which describes in 

detail the legislative background and 

regulatory scope of the present 

rulemaking proceeding.2 The Office 

assumes the reader’s familiarity with 

that document. 

A. Library and Archives Opt Out 

The CASE Act directs the Register of 

Copyrights to ‘‘establish regulations 

allowing for a library or archives that 

does not wish to participate in 

proceedings before the Copyright Claims 

Board to preemptively opt out of such 

proceedings.’’ 3 The Office must also 

‘‘compile and maintain a publicly 

available list of the libraries and 

archives that have successfully opted 

out of proceedings.’’ 4 In promulgating 

these regulations, the Register cannot 

‘‘charge a library or archives a fee to 

preemptively opt out of proceedings’’ or 

‘‘require a library or archives to renew 

a decision to preemptively opt out of 

proceedings.’’ 5

For the purposes of this provision, the 

statute defines ‘‘library’’ and ‘‘archives’’ 

as ‘‘any library or archives, respectively, 

that qualifies for the limitations on 

exclusive rights under section 108 [of 

title 17].’’ 6 Section 108 provides 

exemptions to libraries and archives 

from liability for infringement for 

specified uses of copyrighted works.7

For an institution to qualify for those 

exemptions, ‘‘the collections of the 

library or archives [must be] . . . open 

to the public, or . . . available not only 

to researchers affiliated with the library 

or archives or with the institution of 

which it is a part, but also to other 

persons doing research in a specialized 


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49274 Federal Register / Vol. 86, No. 168 / Thursday, September 2, 2021 / Proposed Rules 

8 Id. at 108(a). 

9H.R. Rep. No. 94–1476 at 74. 

10 Id. 

11 86 FR 16156, 16161 (Mar. 26, 2021). 

12 Id. 

13Am. Ass’n of L. Libraries (‘‘AALL’’) NOI Initial 

Comments at 1–2; Univ. of Mich. Library NOI Initial 

Comments at 4–5. 

14Univ. of Mich. Library NOI Initial Comments at 

4–5 (‘‘Libraries and archives that would like to file 

a blanket opt-out notice should be able to do so 

without needing to certify or prove their eligibility 

for uses authorized by [section] 108.’’); Univ. Infor. 

Pol’y Officers NOI Reply Comments at 1 (‘‘libraries 

and archives should not be required to certify their 

eligibility in order to submit a preemptive blanket 

opt-out’’); see also Library Copyright All. (‘‘LCA’’) 

NOI Initial Comments at 1 (‘‘it should be sufficient 

for the library merely to assert that it meets the 

statutory definition’’). But see LCA NOI Reply 

Comments at 2 (contemplating a preemptive opt out 

by ‘‘certification’’). 

15AALL NOI Initial Comments at 1–2; see also 

Anthony Davis Jr. & Katherine Luce NOI Initial 

Comments at 2 (‘‘If there is any approval or 

certification process, it should not be onerous.’’). 

16LCA NOI Initial Comments at 1. 

17LCA NOI Reply Comments at 2. 

18Ben Vient NOI Initial Comments at 3 

(suggesting that ‘‘[t]o the extent that a Library or 

Archive wishes to keep its opt-out current with the 

CCB, it is the responsibility of the Library or 

Archive to have an Affidavit or Declaration with its 

current Director on file with the CCB’’). 

19Am. Intell. Prop. L. Ass’n (‘‘AIPLA’’) NOI 

Initial Comments at 4; Copyright Alliance, Am. 

Photographic Artists, Am. Soc’y for Collective 

Rights Licensing, Am. Soc’y of Media 

Photographers, The Authors Guild, CreativeFuture, 

Digital Media Licensing Ass’n, Graphic Artists 

Guild, Indep. Book Pubs. Ass’n, Music Creators N. 

Am., Nat’l Music Council of the United States, Nat’l 

Press Photographers Ass’n, N. Am. Nature 

Photography Ass’n, Prof. Photographers of Am., 

Recording Academy, Screen Actors Guild-Am. Fed. 

of Television and Radio Artists, Soc’y of Composers 

& Lyricists, Songwriters Guild of Am. & Songwriters 

of N. Am. (‘‘Copyright Alliance et al.’’) NOI Initial 

Comments at 20; Science Fiction and Fantasy 

Writers of Am. NOI Reply Comments at 2 (agreeing 

that ‘‘a library or archive should make its 

declaration under penalty of perjury’’); see also 

Ass’n of Medical Illustrators (‘‘AMI’’) NOI Initial 

Comments at 2 (‘‘AMI strongly believes that [library 

and archives] proof and certification should be a 

requirement in implementing regulations’’ and 

‘‘that the pre-emptive opt-out is not available to 

companies that are not eligible for Internal Revenue 

Code of 501[(c)(3)] treatment.’’). 

20Copyright Alliance et al. NOI Reply Comments 

at 12–13. 21 Id. 22AIPLA NOI Initial Comments at 4 (‘‘If the CCB 

determines that a Library or Archive does not 

qualify, the Library or Archive should be permitted 

to appeal the decision for a fee.’’); Copyright 

Alliance et al. NOI Initial Comments at 20 (same); 

see AMI NOI Initial Comments at 2 (‘‘Library/ 

Archive opt-outs should be open to public comment 

and granted for 2-year terms then must reapply 

(using the 1201 exemption to prohibition on of 

circumvention process as a potential model).’’); 

Univ. of Mich. Library NOI Initial Comments at 4– 

5 (‘‘If a challenge is later brought concerning the 

library or archive’s status, the library or archive 

should be required to attest that they meet the 

requirements of [section] 108(a)(2).’’). 

23AIPLA NOI Initial Comments at 4. 24 Id.; Copyright Alliance et al. NOI Initial 

Comments at 20 (‘‘If it is determined that a [library 

or archives] does not qualify, the [library or 

archives] should be permitted to request that the 

Board reconsider the decision for a fee (the statute 

only precludes a fee to apply not to request 

reconsideration when the application is denied).’’). 25Copyright Alliance et al. NOI Initial Comments 

at 20; see Copyright Alliance et al. NOI Reply 

Comments at 14–15 (same); AIPLA NOI Initial 

Comments at 4 (same). 26Copyright Alliance et al. NOI Initial Comments 

at 20; see Copyright Alliance et al. NOI Reply 

field.’’ 8 The Copyright Act of 1976’s 

House Report provides further guidance 

as to entities intended to be covered by 

section 108: 

Under [section 108], a purely commercial 

enterprise could not establish a collection of 

copyrighted works, call itself a library or 

archive, and engage in for-profit reproduction 

and distribution of photocopies. Similarly, it 

would not be possible for a non-profit 

institution, by means of contractual 

arrangements with a commercial copying 

enterprise, to authorize the enterprise to 

carry out copying and distribution functions 

that would be exempt if conducted by the 

non-profit institution itself.9

The House Report also notes that 

there may be factual questions as to 

whether libraries or archives ‘‘within 

industrial, profitmaking, or proprietary 

institutions’’ would qualify for the 

section 108 exemptions.10

In the NOI, the Office requested input 

on issues related to this opt-out 

provision, including whether the Office 

should require proof or a certification 

that a library or archives qualifies for 

the opt-out provision; which entities, 

principals, or agents should be allowed 

to opt out on behalf of a library or 

archives; how the opt-out provision 

would apply to library or archives 

employees; and various transparency 

and functionality considerations related 

to publication of the opt-out list.11

1. Proof or Certification Requirement 

The NOI asked ‘‘whether a library or 

archive should be required to prove or 

certify its qualification for the 

limitations on exclusive rights under 17 

U.S.C. 108, and thus for the blanket optout provisions, and how to address 

circumstances where a library or 

archives ceases qualifying.’’ 12 In 

comments submitted in response, 

parties representing libraries and 

archives generally opposed any 

requirement that these entities be 

required to ‘‘prove’’ that they qualify for 

the opt-out provision, although some 

supported a provision allowing such an 

entity to self-certify that it qualifies.13

University Information Policy Officers 

and the University of Michigan Library 

stated that libraries and archives should 

not be required to certify their eligibility 

to submit a preemptive blanket opt-out 

notice.14 AALL suggested that a selfcertification approach ‘‘would meet the 

intent of Congress, which created the 

preemptive opt out for libraries and 

archives to provide an efficient and 

streamlined system for these 

organizations and to help them avoid 

the burdensome administrative 

requirements of repeated opt outs.’’ 15

LCA initially stated a library should 

only have to ‘‘assert’’ that it qualifies for 

the preemptive opt-out,16 but 

subsequently suggested that selfcertification would be preferred to a 

‘‘legal conclusion by a government 

agency that could influence a court’s 

assessment concerning a library’s 

qualification for section 108.’’ 17

Others suggested that an entity that 

preemptively opts out of CCB 

proceedings should be required to 

submit a formal affidavit or declaration 

‘‘certifying its limitations on exclusive 

rights under 17 U.S.C 108,’’ 18

potentially under penalty of perjury.19

The Copyright Alliance et al. argued 

that Congress granted libraries and 

archives ‘‘a unique and narrow 

exception’’ to preemptively opt out of 

CCB proceedings, but in doing so 

‘‘expressly limited the ability to blanket 

opt out to [libraries or archives] that 

qualify for the limitations on exclusive 

rights under section 108.’’ 20 They 

voiced concern that ‘‘[t]o allow entities 

to ‘self-certify’ would be to open the 

blanket opt out to any entity claiming to 

be a ‘library’ or ‘archive’ regardless of 

whether the entity rightfully qualifies 

under the law.’’ 21

AIPLA, AMI, and Copyright Alliance 

et al. proposed creating a Copyright 

Office or CCB procedure, separate from 

a CCB infringement proceeding, to 

review the qualifying status of a library 

or archives for the preemptive opt-out.22

AIPLA recommended that ‘‘anyone, 

including members of the public not 

bringing a CCB claim, should be 

permitted to challenge whether a 

Library or Archive qualifies [for the 

preemptive opt-out].’’ 23 Both AIPLA 

and the Copyright Alliance et al. 

proposed that the Office could charge a 

fee for its review, with AIPLA 

suggesting that the fee would be ‘‘paid 

by the challenger if the CCB finds the 

Library or Archive still qualifies, and by 

the Library or Archive if it is found not 

to comply.’’ 24 Finally, the Copyright 

Alliance et al. proposed an additional 

mechanism to address any circumstance 

where a federal court ‘‘determines that 

[an] entity does not qualify for the 

section 108 exceptions.’’ 25 In such a 

case, the court or the entity would be 

directed to notify the Copyright Office 

of that determination, so that it can 

‘‘reconsider the blanket opt-out after 

giving the [library or archive] an 

opportunity to defend its status.’’ 26


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Comments at 14–15 (same); AIPLA NOI Initial 

Comments at 4 (same). 

27LCA NOI Reply Comments at 2. 

28 Id. 

29MPA, RIAA & SIIA NOI Reply Comments at 10. 

LCA agreed that any status determination by the 

CCB should not be treated as conclusive in other 

contexts. LCA NOI Reply Comments at 1–2. 

30 17 U.S.C. 1506(aa)(4); see also Copyright 

Alliance et al. NOI Reply Comments at 13 n.7 

(opposing ‘‘comments suggesting that the CCB 

adopt a definition of ‘libraries and archives’ other 

than the definition articulated in the statute’’). But 

see Authors Alliance NOI Initial Comments at 5– 

6 (‘‘[W]e support a broad definition of ‘libraries and 

archives’ which encompasses public libraries, 

academic libraries, and other institutions serving 

the essential functions of preservation and sharing 

of knowledge and culture.’’). 

31See U.S. Copyright Office, Compendium of U.S. 

Copyright Office Practices sec. 309.2 (3d ed. 2021) 

(noting the Office’s similar approach regarding 

registration materials). 

32 5 U.S.C. 704 (‘‘[F]inal agency action for which 

there is no other adequate remedy in a court [is] 

subject to judicial review.’’). 

33 86 FR at 16161. 

34LCA NOI Initial Comments at 2. 

35 Id. 

36AALL NOI Initial Comments at 2; Anthony 

Davis Jr. & Katherine Luce NOI Initial Comments at 

2. 

37AMI NOI Initial Comments at 2. 

38 Id. 

39Copyright Alliance et al. NOI Initial Comments 

at 20. 

40 Id. at 20–21. 

LCA did not support such a 

proceeding and suggested that, if a 

claimant wishes to bring a claim against 

a library or archives that it believes is 

ineligible for the preemptive opt out, ‘‘it 

can file a claim against the library [or 

archives] with the CCB, indicating that 

the library [or archives] does not meet 

the [statutory] requirements.’’ 27 At that 

point, the CCB would review the claim 

to determine ‘‘[i]f the claimant has pled 

facts sufficient to indicate that the 

library no longer is eligible for the 

preemptive opt-out,’’ and then the 

library or archives would be served with 

a notice and given the opportunity to 

either ‘‘demonstrate that it still meets 

the requirements of section 108(a)(2), 

and thus that its preemptive opt-out is 

still valid,’’ or ‘‘opt out of that specific 

proceeding before the CCB.’’ 28

While taking no position on any 

process for a library or archives to 

‘‘claim status . . . for purposes of a 

blanket opt-out,’’ the Motion Picture 

Association (‘‘MPA’’), Recording 

Industry Association of America 

(‘‘RIAA’’), and Software and Information 

Industry Association (‘‘SIIA’’) asked that 

the Office make clear that ‘‘an entity’s 

status as a library or archive for the 

purposes of opting out under CCB does 

not constitute a determination of that 

entity’s status, and may not be cited as 

such, in any other context, including in 

any federal court litigation in which that 

entity is a party.’’ 29

The Office appreciates parties’ 

comments on this issue and proposes 

that any library or archives that wishes 

to take advantage of the statutory 

preemptive opt-out option must submit 

a self-certification that it ‘‘qualifies for 

the limitations on exclusive rights under 

section 108.’’ 30 In doing so, the Office 

is seeking to balance the statutory goals 

of ensuring that only libraries and 

archives are eligible for a preemptive 

opt-out, but also that any such entities 

are not overly burdened in effecting that 

election. The proposed rule also 

requires that any library or archives that 

has been found by a federal court not to 

qualify for the section 108 exemptions 

report this information to the CCB. 

The Office will accept the facts stated 

in the opt-out submission unless they 

are implausible or conflict with sources 

of information that are known to the 

Office or the general public.31 If the 

Office believes, based on such 

information, that the entity does not 

qualify, it will communicate to the 

submitter that it does not intend to add 

the entity to the preemptive opt-out list, 

or that it intends to remove the entity 

from the list. The Office will then allow 

the submitter to provide evidence 

supporting the entity’s eligibility for the 

exemption. If, after reviewing the 

submitter’s response, the Office 

determines that the entity does not 

qualify, the entity will not be added to, 

or will be removed from, the opt-out 

list. If the Office determines that the 

entity does qualify, it will be added to, 

or remain on, the opt-out list. Either 

determination will constitute final 

agency action under the Administrative 

Procedure Act.32

With respect to the requests to allow 

third-party challenges to an institution’s 

eligibility for the preemptive opt-out, 

the Office does not believe it is 

necessary to establish a procedure for 

such objections that is separate from the 

CCB’s adjudication of individual cases. 

Such a process would seem an 

inefficient use of CCB resources, as it 

could require the Board to resolve 

disputes over an institution’s status 

before any claim involving that entity 

has been made. As LCA notes, a party 

seeking to bring a claim against a library 

or archives that it believes is improperly 

on the opt-out list may file the claim 

with the CCB and include the basis for 

that conclusion in its statement of 

material facts. If, during its review of the 

claim for compliance, the CCB 

determines that the claimant has alleged 

facts sufficient to support the 

conclusion that the entity is ineligible, 

and the claim is otherwise compliant, 

the claimant will be instructed to 

proceed with service on the respondent. 

The respondent may then include in its 

response any information to 

demonstrate that it is in fact eligible, or 

may simply opt out of that specific 

proceeding. This process is reflected in 

the proposed rule. 

2. Persons Allowed To Opt Out on 

Behalf of a Library or Archives 

The NOI noted the ‘‘prevalence of 

libraries and archives being located 

within larger entities, including but not 

limited to colleges and universities or 

municipalities,’’ and asked for 

comments ‘‘addressing which entities, 

principals, or agents may opt out on 

behalf of a library or archive, as well as 

any associated certifications.’’ 33 In 

response, LCA suggested that Office 

regulations ‘‘should allow the 

preemptive opt-out to be exercised by 

any person with the authority to take 

legally binding actions on behalf of the 

library in connection to litigation.’’ 34 In 

its view, ‘‘[b]ecause some institutions 

have many different libraries, an official 

with the appropriate authority should 

be able in a single process to exercise a 

preemptive opt-out with respect to all 

the eligible libraries within the 

institution.’’ 35 Other commenters 

suggested that those with the authority 

to opt out on behalf of a library or 

archives could include a university 

agent (e.g., a dean or associate dean) or 

a law firm.36 In contrast, AMI contended 

that ‘‘a blanket, institutional opt-out 

should not be permitted’’ for 

institutions or entities containing 

multiple archives.37 It argued that 

‘‘[o]therwise, a complainant could have 

wasted money and time on bringing an 

action only to have it thrown out 

because of ignorance of institutional 

affiliation of the infringer.’’ 38

The Copyright Alliance et al. 

suggested that ‘‘[w]here a [library or 

archives] is a part of a larger entity or 

municipality, such that the [library or 

archives] itself does not have standing 

to act as a Claimant or Counterclaimant 

on its own, only the larger entity or 

municipality should be allowed to 

request the blanket opt-out on behalf of 

the [library or archives].’’ 39 They 

reasoned that ‘‘[b]ecause the blanket 

opt-out could have major implications 

on an entity’s exposure to liability, only 

the larger entity should be allowed to 

make that decision.’’ 40

The Office generally agrees with 

LCA’s suggestion that the authority to 

exercise the preemptive opt-out option 

should belong to any person with the 

authority to take legally binding actions 


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41 86 FR at 16161. 

42AIPLA NOI Initial Comments at 5; Copyright 

Alliance et al. NOI Initial Comments at 21; LCA 

NOI Initial Comments at 2. 

43 86 FR at 16161. 

44LCA NOI Reply Comments at 3; Univ. 

Information Policy Officers NOI Reply Comments at 

1; AALL NOI Initial Comments at 2; Anonymous II 

NOI Initial Comments at 1; Anthony Davis Jr. & 

Katherine Luce NOI Initial Comments at 2; LCA 

NOI Initial Comments at 3; Univ. of Ill. Library NOI 

Initial Comments at 2; Univ. of Mich. Library NOI 

Initial Comments at 5; see also Science Fiction and 

Fantasy Writers of Am. NOI Reply Comments at 2 

(noting ‘‘no major objection to such a provision, so 

long as care is taken to ensure that employees are 

in fact acting within the proper scope of their 

employment and within the limits of 17 U.S.C. 

108’’). 

45Univ. of Ill. Library NOI Initial Comments at 2. 

46AALL NOI Initial Comments at 2 (citing 17 

U.S.C. 108); Univ. of Ill. Library NOI Initial 

Comments at 2 (citing 17 U.S.C. 108(a)). 

47 17 U.S.C. 108(a). 

48LCA NOI Reply Comments at 3. 

49 Id. (citing 17 U.S.C. 1504(d)(3)–(4)). 

50 Id. 

51Copyright Alliance et al. NOI Initial Comments 

at 21. 

52 Id. 

53AIPLA NOI Initial Comments at 5. 

54 Id. at 5; Copyright Alliance et al. NOI Reply 

Comments at 14. 

55AMI NOI Initial Comments at 2. 

56See, e.g., Alan Latman & William S. Tager, 

Study No. 25: Liability of Innocent Infringers of 

Copyrights 145 (1958) (‘‘The normal agency rule 

that a[n] [employer] is liable for [the employee’s] 

wrongful acts committed within the scope of 

employment has been considered applicable to 

copyright infringement.’’), reprinted in Subcomm. 

on Patents, Trademarks, and Copyrights, S. Comm. 

on the Judiciary, 86th Cong., Copyright Law 

Revision: Studies 22–25 135 (Comm. Print 1960); 

see also, e.g., Lowry’s Reports, Inc. v. Legg Mason, 

Inc., 271 F. Supp. 2d 737, 746 (D. Md. 2003) 

(holding that employer was potentially liable for the 

infringing conduct of its employee-agent). 

57Restatement (Third) of Agency sec. 7.01 (Am. 

Law. Inst. 2006). 

58 17 U.S.C. 1506(aa)(1). 

on behalf of the library or archives in 

connection with litigation. The 

proposed rule incorporates this 

approach. Further, the Office does not 

see a reason to restrict the ability of an 

institution to submit a preemptive optout election for multiple libraries or 

archives that are the part of the same 

institution in a ‘‘blanket’’ fashion, as the 

use of separate submissions would be 

inefficient. Any preemptive opt-out 

election involving multiple libraries or 

archives, however, should separately 

identify the individual libraries or 

archives to be covered by the 

submission, as opposed to providing a 

collective description such as ‘‘all 

university libraries.’’ 

3. Transparency and Functionality 

Considerations 

The NOI also asked for input ‘‘related 

to transparency and functionality 

considerations with respect to its 

publication of the list of libraries and 

archives that have opted out.’’ 41

Commenters generally agreed that the 

list of libraries and archives that have 

preemptively opted out of participating 

in CCB proceedings should be made 

publicly available online.42 The Office 

agrees, and accordingly the list will be 

maintained on the Board’s website. 

4. Application of the Opt-Out Provision 

to Persons in the Course of Their 

Employment 

Finally, the NOI asked parties to 

comment on whether the Office ‘‘should 

include a regulatory provision that 

specifies that this opt out extends to 

employees operating in the course of 

their employment.’’ 43 Commenters 

representing libraries and archives 

supported such a rule, while others, 

including AIPLA and the Copyright 

Alliance et al., were opposed. 

Several library representatives, 

including AALL, LCA, the University of 

Illinois Library, and the University of 

Michigan Library, advocated for 

regulatory language specifying that the 

preemptive opt-out extends to 

employees operating in the course of 

their employment.44 As the University 

of Illinois Library argued, ‘‘[t]o provide 

a blanket opt out provision to libraries 

yet potentially hold employees liable 

when working within the scope of their 

employment would be to eviscerate the 

opt out provision as the work of 

libraries is conducted by its employees, 

not by the entity itself.’’ 45 AALL and 

the University of Illinois Library also 

argued that such a rule would be 

consistent with section 108,46 which 

extends the statutory exemption for 

libraries and archives to ‘‘any of [the 

library or archives’] employees acting 

within the scope of their 

employment.’’ 47

In further support of this approach, 

LCA argued that Copyright Claims 

Attorneys, who are required to review 

new claims to ensure that they comply 

with the statute and regulations, would 

be able ‘‘to determine from the claim’s 

statement of material facts whether the 

respondent is a library employee acting 

with the scope of her employment.’’ 48 It 

argued that such a determination would 

be no less burdensome ‘‘than to 

determine whether the respondent is a 

library that has preemptively opted-out 

of CCB proceedings, a Federal or State 

governmental entity,’’ or ‘‘a person or 

entity residing outside of the United 

States’’—all of which have to be 

determined by the CCB before a 

claimant is allowed to proceed with a 

claim.49 LCA also contended that ‘‘[a]n 

employee’s failure to opt out inevitably 

would result in the library becoming 

enmeshed in the CCB proceeding on 

behalf of the employee, contrary to 

Congressional intent.’’ 50

The Copyright Alliance et al. opposed 

extending the libraries and archives optout provision to employees acting 

within the scope of their employment, 

arguing that ‘‘[w]hether an employee is 

operating within the course/scope of 

their employment is a question of fact 

that would need to be determined by the 

CCB.’’ 51 In their view, ‘‘[i]f a claim is 

brought against an individual, and it is 

determined that the claim should have 

been brought against a [library or 

archive] that has elected to blanket optout, the claim should be dismissed.’’ 52

AIPLA added that ‘‘[d]eciding whether 

to extend a blanket opt out to employees 

would require the CCB to determine ex 

parte whether employees were 

operating in the course of their 

employment,’’ which would 

‘‘undermine the adversarial process and 

increase the burden on the CCB.’’ 53

Both AIPLA and the Copyright Alliance 

et al. noted that individuals who are 

potentially acting within the scope of 

their employment have the option to opt 

out of any CCB proceeding 

themselves.54 AMI similarly stated that 

it did not support regulations that 

would ‘‘shield [a library or archive] 

employee from liability for actions taken 

in the course of employment, but not 

authorized or otherwise sanctioned by 

the employer [who opted out of the CCB 

process].’’ 55

The Office appreciates libraries’ and 

archives’ concerns that excluding 

individual employees from the blanket 

opt-out could hamper the effectiveness 

of that option by allowing parties to 

assert claims against such individuals 

when claims against the institution are 

unavailable. Such a rule, however, 

seemingly appears inconsistent with 

principles of agency law and would 

require a broad interpretation of the 

statutory text. While it is generally true 

that an employer may be liable for the 

actions of employees taken within the 

scope of their employment,56 the Office 

does not understand that principle to 

mean that suits against the employee 

individually are precluded in such 

circumstances. Rather, as a general rule, 

‘‘[u]nless an applicable statute provides 

otherwise, an actor remains subject to 

liability although the actor acts as an 

agent or an employee, with actual or 

apparent authority, or within the scope 

of employment.’’ 57 Moreover, the CASE 

Act expressly offers the preemptive optout option to ‘‘a library or archives,’’ but 

does not mention employees.58 The 


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59LCA NOI Initial Comments at 3. 

60Anonymous II NOI Initial Comments at 1. 

61 17 U.S.C. 1506(aa)(1); see also 86 FR at 16161 

(‘‘Congress did not establish a blanket opt-out for 

any entities other than libraries and archives, and 

in that case, it did so expressly by statute. This 

suggests that the Office lacks authority to adopt 

other blanket opt-outs by regulation.’’ (citing 

Antonin Scalia & Bryan A. Garner, Reading Law: 

The Interpretation of Legal Texts 107 (2012); Lindh 

v. Murphy, 521 U.S. 320, 330 (1997))). 

62Anthony Davis Jr. & Katherine Luce NOI Initial 

Comments at 2; CCIA & IA NOI Initial Comments 

at 4; LCA NOI Initial Comments at 3. 

63LCA NOI Initial Comments at 3. 

64Copyright Alliance et al. NOI Reply Comments 

at 12–13. 

65 Id. at 13. 

66 Id. 

67LCA NOI Reply Comments at 4. 

68 Verizon NOI Initial Comments at 3–4. 

69 17 U.S.C. 1507(b). 

70 Id. at 1506(q)(3). 

71 Id. at 1507(b)(2); 1506(q)(3). 

72 86 FR at 16161. 

73Copyright Alliance et al. NOI Initial Comments 

at 21. 

74MPA, RIAA & SIIA NOI Initial Comments at 9. 

75 Id. 

proposed rule accordingly does not 

include such a provision. 

Some commenters further requested 

that the Office promulgate a regulation 

expanding the statutory opt-out 

provision to a library’s larger 

institution,59 such as a university, or to 

that larger institution’s students, staff, 

adjunct, and faculty.60 For the same 

reasons just noted, however, such a rule 

is inconsistent with the statute’s express 

limitation of this option to libraries and 

archives.61

5. Other Proposals 

Commenters asked the Office to 

promulgate certain additional rules 

related to participation by libraries and 

archives. First, some commenters 

requested that the Office consider 

including regulations allowing a library 

or archives to revoke or rescind its 

preemptive opt-out election.62 As LCA 

explained, ‘‘[a] library should not 

forever be excluded from the CCB 

process because it exercises a 

preemptive opt-out at one point in 

time.’’ 63 The Copyright Alliance et al. 

opposed this proposal.64 As an 

alternative, they suggested that the 

Office could create a ‘‘two-tiered 

system,’’ with the first tier allowing for 

permanent opt outs and the second tier 

requiring recertification of the 

institution’s opt-out decision ‘‘on an 

annual basis.’’ 65 In their view, this 

approach ‘‘would have the additional 

benefit of acting as a routine ‘audit’ to 

ensure that [libraries or archives] taking 

advantage of the blanket opt-out 

continue to meet the qualifications for 

section 108.’’ 66

The Office generally agrees that a 

library’s or archives’ opt-out election 

should not be irreversible. Indeed, 

permitting such an institution to rescind 

an opt-out would help advance the 

statutory goal of encouraging 

participation in the CCB system. The 

proposed rule accordingly provides that 

a library or archives may rescind a 

preemptive opt-out election by 

providing written notification of such 

intent to the CCB. To avoid potential 

abuses and to limit the impact on CCB 

resources, the proposed rule provides 

that an institution may make no more 

than one such rescission per calendar 

year. 

In addition, two commenters 

proposed rules to address errors and 

abuses involving the opt-out process. 

LCA urged the Office to establish 

procedures to address circumstances 

where a Copyright Claims Attorney 

erroneously allows a claim to proceed 

against a library.67 Verizon proposed 

regulations to ‘‘deter those who 

repeatedly abuse the opt-out process,’’ 

including the ability ‘‘to impose 

monetary fines on bad faith filers’’ and 

‘‘the ability to ban such parties from 

future use of the CCB process.’’ 68 While 

these suggestions are related to the 

preemptive opt-out provisions for 

libraries and archives, they are more 

appropriately considered in future 

CASE Act rulemakings addressing errors 

in and abuses of CCB procedures 

generally. 

B. Class Actions 

A CCB proceeding does not have any 

effect on a class action proceeding in 

federal district court.69 If, however, a 

party in an active CCB proceeding 

‘‘receives notice of a pending or putative 

class action, arising out of the same 

transaction or occurrence’’ as the claim 

at issue before the CCB, the CASE Act 

provides that party with two choices.70

The party must either ‘‘opt out of the 

class action, in accordance with 

regulations established by the Register,’’ 

or seek dismissal of the CCB proceeding 

in writing.71 In the NOI, the Office 

asked for public comment on ‘‘any 

issues that should be considered 

relating to regulations governing 

dismissal or opt-outs related to class 

action proceedings, including specific 

proposed regulatory language.’’ 72

Two parties provided comments on 

this issue. The Copyright Alliance et al. 

suggested that ‘‘[i]f a party receives 

notice of a class action and wishes to 

dismiss the case before the CCB, the 

regulations should require that party to 

notify the CCB and the other parties to 

the case within 10 business days 

following receipt of the class action 

notice.’’ 73 The MPA, RIAA, and SIAA 

did not suggest a specific time period, 

but suggested that ‘‘a party learning of 

a class action during the pendency of a 

proceeding and wishing to exercise a 

class-action opt-out should be required 

to do so promptly after learning of the 

class action.’’ 74 The MPA, RIAA, and 

SIIA also voiced concerns that a delayed 

opt out decision ‘‘risks wasting effort 

and expense by the litigants and the 

CCB, and the amount of wasted effort 

and expense increases with the passage 

of time.’’ 75

The Office has proposed a fourteenday period for a party to either opt out 

of the class action or to seek dismissal 

of the CCB proceeding. If a party 

chooses to opt out of the class action, he 

or she must file written notice of that 

intent with the CCB within fourteen 

days after filing such notice with the 

court. The proposed rule authorizes the 

Board to extend these time periods for 

good cause. 

List of Subjects in 37 CFR Part 223 

Copyright, Claims. 

Proposed Regulations 

For the reasons set forth in the 

preamble, the Copyright Office proposes 

to amend Chapter II, Subchapter B, of 

title 37 Code of Federal Regulations to 

read as follows: 

SUBCHAPTER B—COPYRIGHT CLAIMS 

BOARD AND PROCEDURES 

■ 1. The heading of Subchapter B is 

revised to read as set forth above. 

■ 2. Part 223 is added to read as follows: 

PART 223—OPT-OUT PROVISIONS 

Sec. 

223.1 [Reserved] 

223.2 Libraries and archives opt-out 

procedures. 

223.3 Class action opt-out procedures. 

Authority: 17 U.S.C. 702, 1510. 

§ 223.1 [Reserved] 

§ 223.2 Libraries and archives opt-out 

procedures. 

(a) Opt-out notification. (1) A library 

or archives that wishes to preemptively 

opt out of participating in Copyright 

Claims Board proceedings under 17 

U.S.C. 1506(aa) may do so by submitting 

written notification to the Copyright 

Claims Board. The notification shall 

include a signed certification under 

penalty of perjury that the library or 

archives qualifies for the limitations on 

exclusive rights under section 108 of 

title 17. 

(2) The submission described in 

paragraph (a)(1) of this section shall list 

the name and physical address of each 


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49278 Federal Register / Vol. 86, No. 168 / Thursday, September 2, 2021 / Proposed Rules 

library or archives to which the 

preemptive opt out applies and shall be 

signed by a person with the authority 

described in paragraph (c) of this 

section. The library or archives must 

also provide a point of contact for future 

correspondence, including phone 

number, mailing address, and email 

address and shall notify the Copyright 

Claims Board if this information 

changes. 

(3) The Copyright Claims Board will 

accept the facts stated in the submission 

described in paragraphs (a)(1) and (2) of 

this section, unless they are implausible 

or conflict with sources of information 

that are known to the Copyright Claims 

Board or the general public. 

(4) If a federal court determines that 

an entity described in paragraph (a)(1) 

of this section does not qualify for the 

limitations on exclusive rights under 

section 108 of title 17, that entity must 

inform the Copyright Claims Board of 

that determination and submit a copy of 

the relevant order or opinion, if any, 

within fourteen days after the 

determination is issued. 

(5) A library or archives may rescind 

its preemptive opt-out election under 

this section, such that it may participate 

in Copyright Claims Board proceedings, 

by providing written notification to the 

Copyright Claims Board in accordance 

with such instructions as are provided 

on the Copyright Claims Board website. 

A library or archives may submit no 

more than one such rescission 

notification per calendar year. 

(6) The notification described in 

paragraph (a)(1) of this section shall be 

submitted to the Copyright Claims 

Board in accordance with such 

instructions as are provided on the 

Copyright Claims Board website. 

(b) Review of eligibility. (1) The 

Copyright Claims Board will maintain 

on its website a public list of libraries 

and archives that have preemptively 

opted out of Copyright Claims Board 

proceedings pursuant to paragraph (a) of 

this section. If the Register determines 

pursuant to paragraph (a)(3) of this 

section that an entity does not qualify 

for the preemptive opt-out provision, 

the Office will communicate to the 

point of contact described in paragraph 

(a)(2) of this section that it does not 

intend to add the entity to the public 

list, or that it intends to remove the 

entity from that list, and will allow the 

entity to provide evidence supporting 

its qualification for the exemption 

within thirty days. If the entity fails to 

respond, or if, after reviewing the 

entity’s response, the Register 

determines that the entity does not 

qualify for the limitations on exclusive 

rights under section 108 of title 17, the 

entity will be not be added to, or will 

be removed from, the public list. If the 

Register determines that the entity 

qualifies for the limitations on exclusive 

rights under section 108 of title 17, the 

entity will be added to, or remain on, 

the libraries and archives preemptive 

opt-out list. This provision does not 

limit the Office’s ability to request 

additional information from the point of 

contact listed pursuant to paragraph 

(a)(2) of this section. 

(2) A party seeking to assert a claim 

under this section against a library or 

archives that it believes is improperly 

included on the public list described in 

paragraph (b)(1) of this section may file 

the claim with the Copyright Claims 

Board pursuant to 17 U.S.C. 1506(e) and 

applicable regulations. The claimant 

must include in its statement of material 

facts allegations sufficient to support 

that belief. If the Copyright Claims 

Board determines, as part of its review 

of the claim pursuant to 17 U.S.C. 

1506(f), that the claimant has alleged 

facts sufficient to support the 

conclusion that the library or archives is 

ineligible for the preemptive opt-out, 

and the claim is otherwise complaint, 

the claimant will be instructed to 

proceed with service of the claim. The 

respondent may include in its response 

any factual statements in support of its 

eligibility. 

(3) Any determination made under 

paragraph (b)(1) of this section shall 

constitute final agency action under 5 

U.S.C. 704. 

(c) Authority. Any person with the 

authority to take legally binding actions 

on behalf of a library or archives in 

connection with litigation may submit a 

notification under paragraph (a) of this 

section. 

(d) Multiple libraries and archives in 

a single submission. A notification 

under paragraph (a) of this section may 

include multiple libraries or archives in 

the same submission if each library or 

archives is listed separately in the 

submission and the submitter has the 

authority described under paragraph (c) 

of this section to submit the notification 

on behalf of all libraries and archives 

included in the submission. 

§ 223.3 Class action opt-out procedures. 

(a) Opt-out or dismissal procedures. 

Any party to an active proceeding before 

the Copyright Claims Board who 

receives notice of a pending or putative 

class action, arising out of the same 

transaction or occurrence as the 

proceeding before the Copyright Claims 

Board, in which the party is a class 

member, shall either opt out of the class 

action or seek written dismissal of the 

proceeding before Copyright Claims 

Board within fourteen days of receiving 

notice of the pending class action. If a 

party seeks written dismissal of the 

proceeding before Copyright Claims 

Board, upon notice to all claimants and 

counterclaimants, the Copyright Claims 

Board shall dismiss the proceeding 

without prejudice. 

(b) Filing requirement. A copy of the 

notice indicating a party’s intent to opt 

out of a class action proceeding must be 

filed with the Copyright Claims Board 

within fourteen days after the filing of 

the notice with the court. 

(c) Timing. The time periods provided 

in paragraphs (a) and (b) of this section 

may be extended by the Copyright 

Claims Board for good cause shown. 

Dated: August 24, 2021. 

Shira Perlmutter, 

Register of Copyrights and Director of the 

U.S. Copyright Office. 

[FR Doc. 2021–18567 Filed 9–1–21; 8:45 am] 

BILLING CODE 1410–30–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R10–OAR–2020–0648; FRL–8787–01– 

R10] 

Air Plan Approval; AK; Eagle River 

Second 10-Year PM10 Limited 

Maintenance Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

the Eagle River, Alaska (AK) limited 

maintenance plan (LMP) submitted on 

November 10, 2020, by the Alaska 

Department of Environmental 

Conservation (ADEC or ‘‘the State’’). 

This plan addresses the second 10-year 

maintenance period after redesignation 

for particulate matter with an 

aerodynamic diameter less than or equal 

to a nominal 10 micrometers (PM10). An 

LMP is used to meet Clean Air Act 

(CAA) requirements for formerly 

designated nonattainment areas that 

meet certain qualification criteria. The 

EPA is proposing to determine that 

Alaska’s submittal meets the CAA 

requirements. The plan relies upon 

control measures contained in the first 

10-year maintenance plan and the 

determination that the Eagle River area 

currently monitors PM10 levels well 

below the PM10 National Ambient Air 

Quality Standards (NAAQS or ‘‘the 

standard’’). 


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