Hi everyone,

I filed reply comments on behalf of the Foundation in the US Copyright Office's rulemaking on an exception for noncommercial uses of pre-1972 sound recordings. There's a copy online here: https://policy.wikimedia.org/wp-content/uploads/2018/12/Wikimedia-Foundation-Reply-Comments-on-Noncommercial-uses-of-Pre-1972-Sound-Recordings.pdf

In the comments, I wanted respond to some of the initial comments and make sure that the US Copyright Office didn't make using the exception too hard. Even though most of these uses likely wouldn't apply to Wikimedia Commons uploads (since they wouldn't be free to use, just subject to a more limited copyright exception), it seemed important to make sure that rules didn't set an overly burdensome requirement on this, in case they become a model for future orphan works proposals. These rules would govern a process by which a user can make noncommercial uses of a pre-1972 sound recording if, (1) after a good-faith, reasonable search, finds that the sound recording isn't being commercially exploited, and (2) they post their intent to make the use with the Copyright Office and wait 90 days to see if a rightsholder objects.

In particular, I wanted to emphasize that the rules had to be usable for most people. For instance, if you require a user to search to see if works are not being commercially exploited, you should make sure that the user can know when their search is done. Leaving it open-ended, as many commenters recommended, doesn't help ordinary users, since there could always be more places for them to look that they just don't know about. Another example is making sure that the rules don't require paying for searches, or detailed documentation to even apply for the use--documentation should be useful if a dispute comes up later, but someone shouldn't be barred from a use if no one objects just because they failed to take enough screenshots of each search result (another recommendation made by commenters).

Just wanted to let folks know one of the things we've been up to.

Cheers,

Sherwin

On Wed, Nov 28, 2018 at 10:18 AM Sherwin Siy <ssiy@wikimedia.org> wrote:

Hi everyone,

I wanted to let you know that the Copyright Office is seeking comments on rules that should make it easier for people to make noncommercial uses of pre-1972 sound recordings that aren't being commercially exploited.

https://www.copyright.gov/rulemaking/pre1972-soundrecordings-noncommercial/

Comments were filed on November 26, and now there's an opportunity to respond to those comments by December 11.

The Copyright Office is looking for public input on rules it must create under the Music Modernization Act (MMA), which was signed into law last month. (We called attention to the threats that earlier versions MMA posed to the public domain; the passed compromise version contains provisions that actually improve the status quo in the public domain in some areas)

One part of the MMA lets a user make a noncommercial use of a sound recording made before 1972 if they make a "good faith, reasonable search" of Copyright Office databases and music services that offer a comprehensive set of sound recordings for sale or streaming. If the user doesn't find the work on those lists after their reasonable search, they can give notice to the Copyright Office and wait 90 days to see if a rightsholder comes forward and objects. If not, they can use the work.

The Copyright Office is writing the rules that define what a "good faith, reasonable search" is, and it has more specific questions in its initial notice. (here: https://www.gpo.gov/fdsys/pkg/FR-2018-10-16/pdf/2018-22516.pdf) Entities ranging from music industry groups to the Internet Archive have filed initial comments; (available here: https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=PS&D=COLC-2018-0008) responses to those are due on December 11.

The Wikimedia Foundation may file some short reply comments replying to some key points made in other submissions, or possibly join other organizations' comments, depending upon feedback.

I'm posting this to the list because I thought it might be valuable for the Copyright Office to hear the perspective of community members who upload pre-1972 sound recordings to Wikimedia Commons, or make other non-commercial uses of the works. Even if you're not likely to use this particular provision for Wikimedia Commons yourself (given the restrictions), it could be useful for them to understand what searching for sources and availability looks like to a typical user, and not necessarily someone in the music industry.

You can make those perspectives known by filing comments at regulations.gov. Instructions on how to file in this proceeding from the Copyright Office are here: https://www.copyright.gov/rulemaking/pre1972-soundrecordings-noncommercial/comment-submission/

Happy to answer any questions people might have.

Thanks,
Sherwin

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Sherwin Siy
Senior Public Policy Manager
Wikimedia Foundation