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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules the process while providing the procedural protections available to other claims before the CCB.
7. Records and Publication Under the statute, each final determination of the CCB will be made available on a publicly accessible website.105 The Office is also directed to establish regulations related to the publication of other records and information concerning CCB
determinations.106 The Office previously indicated that it had requested the provision of an electronic filing and case management system from the Library of Congress Office of the Chief Information Officer, which would provide capabilities comparable to existing case management systems operated by other courts and tribunals.107 The Office sought comments concerning public access to CCB records and proceedings, as well as certification of records and determinations.108 Several commenters agreed that access to determinations and other filings should be publicly available, but information provided during the course of discovery should not be made available.109 Other commenters argued that there should be a presumption of public access to CCB
filings,110 and that access should be free.111 A few commenters requested that the CCB make available statistics related to CCB proceedings.112
The Office recognizes that the CCB
shares characteristics of both court and ADR proceedings.113 Just as some litigants prefer arbitration in part because the records in such proceedings are not made available to the public, some claimants and respondents may 105 17

U.S.C. 1506t3.

106 Id.
107 86

FR 16163.

108 Id.

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109 ABAIPL Reply NOI Comments at 7;
Copyright Alliance, et al. Initial NOI Comments at 38; MPA, RIAA & SIIA Initial NOI Comments at 19.
110 EFF Initial NOI Comments at 4; Univ. of Mich.
Initial NOI Comments at 5.
111 Internet Archive Initial NOI Comments at 3.
112 Engine Initial NOI Comments at 9; Univ. of Mich. Initial NOI Comments at 5.
113 See 17 U.S.C. 1502b9 providing that the CCB is housed in the Copyright Office; id. at 1509b providing that a CCB proceeding qualifies as an alternative dispute resolution process for purposes of referral by district courts.

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prefer that access to their filings in CCB
proceedings be limited. Such a feature might, in fact, play a role in some parties determinations whether to file a claim with the CCB or whether to opt out of a CCB proceeding. Moreover, CCB
determinations are not precedential, and therefore the public interest in such proceedings is arguably less compelling than it is in judicial proceedings.114 The proposed rule seeks to balance public access with the confidentiality interests of the parties. It provides that the official written record of a CCB
proceeding will consist of the parties submissions and documents issued by the CCB. Members of the public may inspect the available official written record through the electronic filing system, with the exception of any materials that have been designated as confidential by the parties. The Office welcomes comment on whether there should be additional safeguards for parties to mutually agree to withdraw certain types of records from public view.
The proposed rule also addresses other issues related to public access to CCB proceedings and documents. The CCB may, in its discretion, make a transcript of a hearing using available technology or a court reporter. The Office anticipates that, in general, the CCB will use standard speech to text transcript technology that is available with the CCBs videoconferencing system. At the request of a party, the CCB may designate an official reporter to record and/or transcribe a hearing.
The requesting party or parties will be responsible for paying the reporter for the cost of the official transcript directly. The Office welcomes comment regarding whether such informal raw transcripts, which may contain various errors, should be added to the official record. Attendance at CCB hearings will be limited to the parties and their representatives, except with leave of the CCB. Requests for leave to attend a CCB
hearing must be made in writing. To certify a CCB record, the Office proposes to utilize preexisting services through 114 See, e.g., 5 U.S.C. 574 requiring communications provided to a neutral during federal alternative dispute resolution be held confidential unless one of four statutory exceptions apply.

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its Records Research and Certification Section.
C. Discovery The statute allows limited discovery in CCB proceedings. Discovery may include the production of relevant information and documents, written interrogatories, and written requests for admission, as established by Office regulations.115 The CCB has the discretion to approve, upon a showing of good cause, requests for additional relevant discovery on a limited basis.116
The CCB also may request specific information and documents from parties, consistent with the interests of justice.117 In addition, the CCB may issue a protective order to protect confidential materials at the request of a party and for good cause.118 The CCB
is empowered to apply an adverse inference concerning disputed facts against a party who fails to timely provide relevant discovery materials in response to a proper request, after providing that party with notice and an opportunity to respond.119
Congress provided for limited discovery in CCB proceedings to ensure that the proceedings are streamlined and efficient. 120 As explained in the Offices Copyright Small Claims report, discovery in federal courts is the primary reason for the length of federal court litigation and is associated with often substantial costs and potential for abuse by exploitative litigants. 121 Consistent with this goal, the Office proposes a period of limited discovery involving the use of standard CCB-issued interrogatories and standard CCB-issued document requests, and allowing parties to serve limited requests for admission.
Requests for additional discovery may be granted for good cause shown. While the CCB may consider requests for expert witnesses, such requests will be disfavored.
115 17

U.S.C. 1506n.

116 Id.
117 Id.

at 1506n1.
at 1506n2.
119 Id. at 1506n3.
120 86 FR 16162.
121 Copyright Small Claims at 13.
118 Id.

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