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Federal Register / Vol. 86, No. 168 / Thursday, September 2, 2021 / Proposed Rules
field. 8 The Copyright Act of 1976s 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
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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 self8 Id.

at 108a.
Rep. No. 941476 at 74.
10 Id.
11 86 FR 16156, 16161 Mar. 26, 2021.
12 Id.
13 Am. Assn of L. Libraries AALL NOI Initial Comments at 12; Univ. of Mich. Library NOI Initial Comments at 45.
14 Univ. of Mich. Library NOI Initial Comments at 45 Libraries and archives that would like to file 9 H.R.

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certification 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 courts assessment concerning a librarys 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 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.
Poly 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.
15 AALL NOI Initial Comments at 12; 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..
16 LCA NOI Initial Comments at 1.
17 LCA NOI Reply Comments at 2.
18 Ben Vient NOI Initial Comments at 3
suggesting that to 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.
19 Am. Intell. Prop. L. Assn AIPLA NOI
Initial Comments at 4; Copyright Alliance, Am.
Photographic Artists, Am. Socy for Collective Rights Licensing, Am. Socy of Media Photographers, The Authors Guild, CreativeFuture, Digital Media Licensing Assn, Graphic Artists Guild, Indep. Book Pubs. Assn, Music Creators N.
Am., Natl Music Council of the United States, Natl Press Photographers Assn, N. Am. Nature Photography Assn, Prof. Photographers of Am., Recording Academy, Screen Actors Guild-Am. Fed.
of Television and Radio Artists, Socy 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 Assn 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 501c3 treatment..

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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 to 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
20 Copyright Alliance et al. NOI Reply Comments at 1213.
21 Id.
22 AIPLA 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 archives status, the library or archive should be required to attest that they meet the requirements of section 108a2..
23 AIPLA 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..
25 Copyright Alliance et al. NOI Initial Comments at 20; see Copyright Alliance et al. NOI Reply Comments at 1415 same; AIPLA NOI Initial Comments at 4 same.
26 Copyright Alliance et al. NOI Initial Comments at 20; see Copyright Alliance et al. NOI Reply
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