We are going to go back into the Committee Hearing with instructions from the chair. He will be here shortly. Thank you senator blackburn for joining. Senator blackburn, do you intend to ask any questions . I was just wondering. If you want to go ahead and go, the chairman has let us start the committee again. He will be here shortly. In interest of your time, if you could, i dont want to rush you. Senator blackburn. Thank you mr. Chairman. I want to say thank you so much to you for being here. One of the things that i wanted to talk with you about, being from tennessee, copyright is in terribly copyright is terribly important to us. As we like to say, three chords and the truth get you a long way. When it comes to the music industry, we have worked on things like the music modernization act and tried to push forward some of those concepts that will strengthen copyright protections and also strengthen against infringement. You know has become really quite an issue. I dont want you to comment on this case, but i do want you to walk through with me how you look at potential implications of a broad fair use standard. I have found an, because i have found an, in andy warhol publication. That is from the Supreme Court. That really brought fear use standard. Is something that can be easily abused. I would love for you to comment on that for a few minutes. [inaudible] sorry, do i need to repeat . It is going to be a very important case for the future for copyright. The Copyright Office worked with the department of justice and signed onto the governments briefs in the case, which makes a number of important points. Taking the side of the photographer. And the main points that we are concerned about are what does transformative use mean exactly and how do you interpret it . In particular, if transformative use is interpreted to broadly, it could undermine the existence of the derivative work rights and copyright law. Because, if anything that changes the original is called transformative, then there is no more a separate derivative work right which is defined to mean something that changes aspects of the of the original work. One issue is, how do you define what is transformative and avoid making it so broad that it covers all derivative works . The other question is what is the impact of a finding of transformative use in the Fair Use Analysis . Because the Supreme Court has cautioned in the past that no one factor should control the entire determination. It is important that even if a use is found to be transformative that the court still go through all the various factors and weigh them in the circumcisions of the case in light of those factors. For all those reasons, we are watching very carefully what the court will do. We urge the court to interpret transformative use not too broadly into put it into its proper place as a full Fair Use Analysis. And, i think it is very important in this case to bear in mind that with a case involving a use of a photograph for the same purpose of the photographer herself is licensing it, for use to illustrate a Magazine Article about the subject is quite different than the use in ar exhibit in a museum. Those were the concerns we had and the reasons that we participated in the governments brief. And we appreciate that. One quick thing before i turn it to the chairman. Is it still the case that the u. S. Is one of only a few countries that does not recognize a performance right . Yes. You are performing to the Public Performance right for sound recording. We have a narrow Public Performance right for sound recordings but not for broadcasting them over the air and you are right. We are an outlier internationally in that respect. It is analogous as a matter of u. S. Law as well because broadcasters pay for the use of musical works when they broadcast them but they do not pay the performers and record producers for the use of the particular recording of the musical work. I am hopeful that we can soon change that. I would support that. Thank you mr. Chairman. Thank you. Also for filling in for me. We have always tried to keep this thing running. I apologize that these votes got a little bit different than we thought they would be. I have tried to provide use additions with over air royalties in 2009. They know they could go out of business if they pursue royalties. Now, we have to make sure the copyright owners receive royalties. Making those royalties for smallmarket radio stations. The American Music fairness act was wellintentioned. It does not address the concerns of small town radio stations and could force them out of the broadcast business. I am not asking for a answer of how we fit that today fix that today but i think we should continue to work on that because sometimes, in small communities in rural areas, local radio stations want to keep people posted on what is going on during the news. But also, they have to pay the bills to make it work. I applaud you on your launch in june of the. It was a way for traders to have for creators to protect their intellectual property. And digital aid. There are more and more ways to steal intellectual property in the digital age. In ordinary america today, we find difficult lawsuits. And if the process, it seems very userfriendly. If you can keep us posted on how this is going so far. It is going very, very well. In fact, we put together an electronic Case Management system for the ccb and hire the entire staff. We put in place a large number of regulations necessary to govern the operation and we have been doing a lot of publicity and outreach to make sure people know about it. All of that has been going smoothly. Are those instructions always available to the public . Yes, in many different formats. We have been engaging in the media. We have materials on our website. We had a website and a q and a and now we have a dedicated website for the tribunal as well. We are doing a lot of speeches and public events, to make sure we reach out as broadly as we can to make sure people are aware this is an opportunity for them. It has been going very smoothly. There are not aware of any particular problems at this and as of the beginning of this week, there were a hundred and 50 claims that have been filed in the approximately two months the tribunal has been in operation. That is more than i would have inspect that she expected, that is very interesting. It is going to be interesting because it will be difficult to predict exactly how they will be. We do not know how many respondents will choose to participate or opt out. A table take more time to have more data because there are various things built into the statutes for clients to serve the claim after it is approved as compliant by the ccb and another 60 days respondents to respond or opt out. In a few months, we should have a better sense of where this is going. I know you and your office has worked with mine on the question of privacy issues. Your system oversees the city and state but does not put personal information, like names. Can you make sure that if this protection of privacy starts having problems that you will let us know . Absolutely. We are very focused on this and we appreciate your office of interest in this. We do have, in our general counsels office, a number of experienced privacy lawyers who are slayer with the roles of congress about privacy. We are focusing on it throughout the process. Thank you. I will leave further questions to senator tillis. And will be here for the duration senator. Thank you for being here. Thank you. I mentioned very brief that the main issue question i wanted to race is already been raised by senator blackburn. First, thank you senator lakey for his years of work on the american fairness act. I heard your response and i read were prone let her about the your proletter about the need to provide two performers for their content. We are looking forward to making sure we look at legislative efforts in that regard and in the near future. I want to make sure i take away philly that the u. S. Is an outlier and remains an outlier on this issue. Yes, there are very few countries that do not provide a broadcasting right. Because many of them provide this right only on a reciprocal basis, they are not paying american performers and Record Companies for the use of their recordings. We are leaving a lot of money on the table abroad that could be coming into the u. S. Thank you very much. I look forward to working with you on the issue including your technical guidance of nessus area. Thank you mr. Chairman. Thank you. I think you have done a great job and i appreciate the progress that was embodied in your opening comments. Compressing the time and being more responsive and applying technology are all the things i like to hear and seldom do in other hearings. Thank you for your work. I do want to talk to you about the letter last month that you sent to me in the office regarding deferred registration examinations. I know in there, you said you heard the concerns of some proponents of dre and that you were looking at maybe alternatives. I think alternative approaches. To outline some in your letter. Can you elaborate were on the alternative approaches and explain the nature, scope, and status of your review . Certainly. We are evaluating a number of options as you indicated. We are looking at legal aspects and the technological aspects and what the Practical Impact would be for each of them. You are considering them very seriously. She could also touch on, i want you to go through but also touch on which of these you could achieve through your current regulatory authorities and what may need additional congressional action we do not currently see the statue as a barrier to any proposals that we are considering but they do require technological changes. We are looking into that as we develop the New Enterprise copyright system. That is not being we will wait until that system is completed before we do anything but a lot of what we require would have to be part of that development. In particular, we are looking at the possibility of a dynamic structure Going Forward were some sees might be lower than they are today and some higher and also the possibility of subscription pricing tiers. We have to see how they can be accommodated from a technological expected perspective. We are also looking at increasing the limits of the number of photographs that can be registered as part of one group application. We are working with the library chief Information Officers on how we can do that. We are also looking at the Technology Necessary for apis to enable hardware and software and Third Party Organizations to achieve integration with our system. Then, more immediately, in the coming fiscal year, we do plan to issue a notice of proposed rulemaking on a new Group Registration option for tdr work. We think a lot a lot of those things respond to the concerns that were raised in the examination study. Can you talk more or do you have any more specifics to provide on the way these would work . Or the fee structures . Are beginning to look into that. Historically, the office has done a new study every five years and the last one was in 2017 and the knew when went in place in 2020. It is about time for us to start focusing on this. You just hired our chief economist in the office. They are beginning by looking into the demand side and doing research on the demand side of what demand there is, what flexibilities there are, and what the Price Sensitivity of different kinds of registrants is and then looking at our costs and registering and recording different kinds of material. He is beginning with that study. Once the study is complete, we will use it to inform a notice of Public Inquiry where we will get comments from the public on the policy issues involved in changing the fee structure. I cannot tell you now exactly what it will be but we are setting the process. What kind of timeline should we expect . Our intent is to start the progress in calendar year 2023. Also in response to the letter, senator lakey, chairman and i set back in june. He held a series of consultations this summer on technical measures that defy that identify or protect copyright works. You have any initial impressions from those discussions . They have been pretty helpful discussions and quite intensive. We are still analyzing the wealth of information we received. We also receive Something Like 6000 written comments that there is a lot of material to go through. But i would say that so far what is clear is there was some convergence on the issues that were important to look at. And that included first, this is an issue be raised also in our section 512 report a couple years ago, there is a wide variety of contexts in which technical measures are used and a wide variety of purposes for which they are used. Second, there was a love for this on the importance of being able to obtain quality metadata for technology that allow identification and attribution of competent. A third issue is the impact of the difference or dusty differential impact of using either automation or human review for some of these processes. Then, and a lot of interest in having the government and the Copyright Office act as a convene or to bring people together. What we are doing is drilling down into the issues a bit. We will be identifying for you what are the areas of consensus and the areas of divergent on those topics. We, think that will be a useful exercise. I was going to ask about areas of consensus. One, do you feel like the Stakeholder Group meetings were well represented across the spectrum echo two, is there any particular area where consensus is great or any areas pointing to a trend that we may have some more work to do . Finally, when should we expect a written work product out of it . We had very good participation in the session and broad representation of different interests. In terms of consensus, there is consensus on what the issues are. And, the value of the government convening but as to the specifics of how those issues should be resolved . Can sense own problems and not own solutions . Probably. We are trying to pull out whatever we can find and will be able to give more information on that. Our goal is to send a report by the end of the year so that is fairly. Ok, thank you. Let me go to another area. Last year, senator tillis and i asked you to identify current use of technical measures like fingerprint protecting their work online. The dmca put some technical measures mandatory. In 35 years there was no. I thank you for understanding and undertaking the work of conducting feedback sessions on the existing opportunity and the use of mechanical technical measures. You try to balance the competing interests among stickers among stakeholders. I have said, it is there are technological problems with the department of energy has chief technological officers. This keeps them from having a chieftain logical the chief technological office. We have been thinking about that question and are aware there is discussion of that in this subcommittee. We currently work for i take worked very closely with the library of congress for chief Information Officer and her staff. The function has been centralized in the library of congress and especially we are working very intensively and partnership with them on the Modernization Initiative and the enterprise copyright system. We have also developed and brought in considerable helps considerable inhouse experience to work on these issues. So far, the combination of the librarys expertise and art expertise has been sufficient to address our current needs for technology. Of course, we do love consultations with stakeholders also about these technological issues. In is true that technology continues to grow in importance and affect everything we do. We are taking on more responsibilities and more roles in large part at the request or mandate of congress. So, i will say that additional expertise could always be useful. There is no question that the Technology Issues are not going away and they will be even more important over time. I know everybody has questions on royalties. To have wellfounded wellfunded platforms. Paying . 91 per song has been what it has been for 15 or 16 years. The board proposed a larger one. I think, of a decade songwriter who had to be chased from his own expense from his home in florida to d. C. On numerous occasions. He purchased that she would not participate in proceedings. They sensed they could make the warranty board more accessible to writers who do not have the time or money or ability to afford participating discovery motions of the entire proceedings. We strongly support the importance of those who are affected by the settlements, being able to have appropriate input to the decisionmaking of the crb. The way the statue is currently written, there is opportunity for nonparticipants to submit comments but not to object to the settlement. And, we know there has been some proposals made for how that input could be made more valuable, how the comments could be amplified in different ways. We are looking at those proposals. At the end of the day, it is these are being that have to make determination it is the crb that have to determine such roles. It probably will not touch on that one. The Biden Administration recently issued guidance requiring all federally funded research be available to the American Public at no cost, which i supported. I would support this in any administration. Spend about 80 billion a year on research. That was often held by a commercial Public Service and scientific society. The person behind pay walls and taking the american taxpayers to pay for things in the first place. If you want it, you should have paid twice. How do you see this landscape changing when it comes to Research Material . As to the particular new policy announced by ostp, we were not consulted on it before it was issued. We also only saw it when it came out. I know the existing policy has built into it the idea of a 12 month embargo, before the content of the publications are made available for free to the public. And, that was put into place as an attempt to balance the interest in getting all of the material completely accessible to the public, as soon as possible, with making sure the public could recoup their costs in developing and editing and publishing the articles that report on the result of the research. My concern would be thats not having any period of embargo but immediately having everything be available for freedom of public and undermine the incentives for publishers to make the investments required to produce those articles into go through the editorial and peer review process they required. Lets you and in our staffs, continue our discussions with that. I know there is a balancing effect. I am also aware that we paid for it, that taxpayers have paid for it. How do we get it out to people . But, john, do you have anything further . Estate followup to the last question. It had more to do with what are your thoughts on the need for any sort of legislative action to empower the Copyright Office with respect to identifying under section 512. Clearly, the dmca was enacted in 1998. No fgms have been identified to date. If that section of the dmca could be made a reality, to have an effect, of having some sort of structure and some sort of rulemaking structure seems like it would be needed. The question is in my mind, i have some concern over what entity should perform that role. If, congress were to divide that to decide such a rulemaking was necessary. It is true that the statute has been in place for about 24 years now. It is past its majority, shall we say. And, it has functioned without any fgms having been and defied. When question is the extent to which that is still a necessary component of the balance. To the extent it is some sort of rulemaking, it is probably a good way forward. Concern i was alluding to is the Copyright Office does not have expertise in technology and standard settings. And, we are also acutely aware of the resources required to conduct a major role making of this kind. I will say the 12 01 vesti 1201 role we have been making which we have now become adept at it and have Refined Processes to make it more efficient than it used to be for everyone, stakeholders and the office. That takes up a huge amount of time and effort by our relatively small staff. Those are my concerns that by looking at the possibility of that structure. Thank you miss chair. I have other questions i will submit to the record. We look forward to working with you as we try to move with the smart copyright act of 2022. You are i guess i have gotten great reports for myself on the work you are doing. Thank you for your continued cooperation. I would agree. Senator tillis, we deal with some parts of the government where we have equal concerns. Yours is not one of them. I hear a lot of compliments and what you have been doing from most republicans in doing press. And that has made me happy that the government is actually working so thank you. We will keep the record open for a few days for any questions. I appreciate you being here. Queen elizabeth ii has died at the age of 96. She was born on april 21, 1926. She was the daughter of King George Vi and queen elizabeth. She married prince philip, duke of edinburgh in 1947. She was the longest lift and longestserving british monarch, surpassing Queen Victoria in who reigned for 63 years. Prince charles iii is heir to the throne. In a world of constant change, she was a setting presence a