[Federal Register: January 21, 2000 (Volume 65, Number 14)]
[Proposed Rules]
[Page 3404-3406]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. 2000-1]
Copyright Rules and Regulations: Information Given by the
Copyright Office
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Copyright Office is proposing amendments to its
regulations governing information given to the public for litigation
purposes in cases where the application for registration is still in-
process. The Office is also proposing to publish in regulatory text the
existing requirement for submission of a Litigation Statement when a
third party needs copies of material accompanying a registration claim
for use in actual or pending litigation and other minor clarifications
to these regulations. These proposed amendments will allow a qualified
party greater access to in-process registration materials and also
provide clearer information to the public on how to get these
materials.
DATES: Written comments are due March 21, 2000.
ADDRESSES: An original and ten copies of the comments should be
addressed, if sent by mail, to: David O. Carson, General Counsel,
Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC
20024. If delivered by hand, an original and ten copies should be
delivered to: Office of the General Counsel, United States Copyright
Office, James Madison Memorial Building, Room 403, First Street and
Independence Avenue, S.E., Washington, DC.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
Patricia L. Sinn, Senior Attorney, Copyright GC/I&R, P.O. Box 70400,
Southwest Station, Washington, DC 20024. Telephone: (202) 707-8380.
Fax: (202) 707-8366.
SUPPLEMENTARY INFORMATION:
1. Background
The Copyright Act makes the Register of Copyrights responsible for
all administrative functions and duties under title 17 and authorizes
the Register to establish regulations for this administration. 17
U.S.C. 701, 702. As an Office of public record, the Copyright Office
provides a public record of completed registrations and recordations,
and it permits access to these records and to the materials or files
accompanying a registration claim--the application, the deposit, and
any correspondence--when the conditions specified in the regulations
are met. See 17 U.S.C. 705, 706. See also 37 CFR 201.2.
The Copyright Office's existing regulations tell the public how to
get information on or access to such registration materials. 37 CFR
202.1, 202.2. In the past, the regulations have distinguished between
providing these materials to copyright claimants and providing them to
third parties, and also between providing copies in cases where the
claim has been examined and registered or refused and in those where
the claim is still pending or in-process. By in-process the Office
means those materials, including correspondence files, applications,
and deposit copies,
[[Page 3405]]
associated with claims to registration that are still being processed
and those for which the process has been reopened.
The Copyright Office already permits limited access to in-process
files. See 37 CFR 201.2(b)(2)-(5), 201.2(c)(1)-(2). However, the Office
no longer sees a reason to distinguish between a request for material
from an in-process file and material from a closed file when a
qualified party needs this material for litigation purposes. The
Office, therefore, proposes amending its regulations to permit the
making of copies of material accompanying in-process claims--including
the deposit--in the same circumstances relating to litigation as those
in which copies may be made from a closed file. See 37 CFR
201.2(d)(2)(ii).
Information needed to initiate a search.\1\ A party requesting a
search for any material accompanying a registration claim in order to
get information, inspect, or get copies of such material must provide
as much specific information as possible about the material desired,
including facts such as the name(s) of the copyright claimant(s) of
record (or his or her designated agent), the title(s) of the work(s) to
be located and copied; and the date(s) the work(s) was submitted for
registration. See 37 CFR 201.2(b)(3)(i).
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\1\ See generally Circular 6. For information on searching the
Office's records to investigate the copyright status of a work see
Circular 22.
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Access to contents of works. Currently, the Office outlines
procedures for gaining access to registration records or materials in
37 CFR 201.2(b). Often a request for access to these materials is
associated with legal proceedings. In particular, Sec. 201.2(b)(5)
permits access to in-process files by someone other than the copyright
claimant in extraordinary circumstances; in practice the circumstances
under which this relief has been granted are equivalent to actual or
prospective litigation. The Office proposes amending this subsection to
allow the making of copies of such material available in cases
identical to those already set out in 37 CFR 201.2(d) for closed files
wherein a qualified party may request certified or uncertified
reproductions of copies, phonorecords, or other identifying material
deposited in connection with registration of a work. Section
201.2(d)(1) specifies what information should be included in the
request to get copies of records. Section 201.2(d)(2) specifies three
conditions in which copies may be made of registration materials. They
are: (1) at the written request of the claimant, or his or her
designated agent, or from an owner of exclusive rights; (2) at the
written request of an attorney for litigation purposes; and (3) upon
receipt of a court order. The proposed regulations would permit access
to and copying of in-process files under the same circumstances found
in 201.2(d)(2) and (3).\2\ In the second situation the attorney or
authorized representative must file a Litigation Statement with the
Copyright Office.
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\2\ Copyright Office regulations already permit copies of in-
process files in the first situation.
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2. Use of the Litigation Statement
The proposed amendment requires use of a Litigation Statement for
requesting in-process materials to be used in litigation. The Office
has recommended the use of a Litigation Statement for completed files
for a long time. In 1991, it announced that in order to obtain copies
of material deposited with the Office in support of a registration
claim, an attorney or authorized agent had to submit a Litigation
Statement. 56 FR 12957 (March 29, 1991). A party that provides a false
statement of a material fact in a Litigation Statement is subject to
criminal penalties under the terms of 18 U.S.C. 1001. Currently, the
Litigation Statement requires that the materials sought be identified
by registration number, year of registration, and title and description
of the work. The Litigation Statement also requires a description of
the active or prospective litigation for which the material is to be
used, including:
1. Name and address of client (or person requesting the material).
2. Whether the client is or may become Plaintiff or Defendant in
litigation.
3. Name of the other party.
4. Nature of the controversy.
5. Name of court if proceedings have been instituted.
If the litigation is prospective, the Litigation Statement requires a
statement of the facts surrounding the controversy and a copy of any
letter or other document that supports the claim that litigation may be
instituted.
Just above the signature line, the following statement appears: ``I
hereby affirm to the Copyright Office that a controversy exists and
that the requested copy will be used only in connection with the
specified actual or prospective litigation. I also acknowledge that any
other use of this copy would be in violation of the Regulations of the
Copyright Office 37 CFR 201.2(d)(2).''
The Litigation Statement also includes a warning that any false
statement of a material fact made on the form may be a criminal
offense, with a reference to 18 U.S.C. 1001 et seq. The texts of 18
U.S.C. 1001 and 37 CFR 201.2(d)(2) are reproduced on the back of the
Litigation Statement.
A Litigation Statement may be requested from the Certification and
Documents Section of the Information and Reference Division. The Office
keeps a record of requests for copies of registration materials made
using the Litigation Statement for at least three years, and this
system of records is available to the public through the Certification
and Documents Section.
When the Office adopts final rules concerning access to and copying
of in-process materials, it will make minor amendments to the existing
Litigation Statement to conform with those regulations. For example, it
will change Registration No. to Registration No. or Control No. if an
application is pending, and broaden the term ``Copyright Registration''
to cover both completed registrations and applications for copyright
registration that are still pending.
3. Other Amendments
The Office is also proposing minor amendments to 37 CFR 201.1(c)
and (d) and 201.2(b)(6), (b)(7) and (c)(4) to update official addresses
and to clarify what kind of information the Office can or cannot
supply.
4. Questions for Public Comment
The Copyright Office requests public comment on any aspect of these
regulations but especially the following:
1. Should a party who needs copies of material for use in pending
or actual litigation be permitted to get copies of in-process materials
in the same way that he or she can if the work had been registered or
the file closed? Why or why not?
2. Should additional information or documentation be required from
those who file a Litigation Statement? For example, to verify that a
party requesting information is truly involved in actual or prospective
litigation, should the party be required to submit a copy of a document
(e.g. the complaint or, in the case of prospective litigation,
correspondence to or from an alleged infringer) that describes what the
dispute over a copyrighted work entails?
3. If litigation is prospective rather than actual, should the
Office contact the copyright owner or any other party to verify the
likelihood of litigation?
[[Page 3406]]
List of Subjects in 37 CFR Part 201
Copyright.
In consideration of the foregoing, it is proposed that part 201 of
37 CFR be amended as follows:
PART 201--GENERAL PROVISIONS
1. The authority citation for part 201 continues to read as
follows:
Authority: 17 U.S.C. 702.
2. Sections 201.1(c) and (d) are revised to read as follows:
Sec. 201.1 Communications with the Copyright Office.
* * * * *
(c) Copies of records or deposits. Requests for copies of records
or deposits should be addressed to the Library of Congress, Copyright
Office, Certifications and Documents Section, LM-402, 101 Independence
Avenue, S.E., Washington, D.C. 20559-6000.
(d) Search of records. Requests for searches of registrations and
recordations in the completed catalogs, indexes, and other records of
the Copyright Office should be addressed to the Library of Congress,
Copyright Office, Reference & Bibliography Section, LM-451, 101
Independence Avenue, S.E., Washington, D.C. 20559-6000.
3. Section 201.2 is amended as follows:
a. By revising paragraphs (b)(5) and (b)(6);
b. By removing the last sentence of paragraph (b)(7) and adding two
sentences in its place;
c. By revising paragraph (c)(4);
d. In paragraph (d)(2) introductory text, by adding the phrase ``or
an application for copyright registration'' after the phrase ``in
connection with a copyright registration''; and
e. By revising paragraph (d)(2)(ii) introductory text.
The revisions to Sec. 201.2 read as follows:
Sec. 201.2 Information given by the Copyright Office.
* * * * *
(b) * * *
(5) In exceptional circumstances the Register of Copyrights may
allow inspection or even copying of pending applications and open
correspondence files by someone other than the copyright claimant, upon
submission of a written request which is deemed by the Register to show
good cause for such access and establishes the person making the
request is one properly and directly concerned. Any request for such
access or copying of this material should be directed to the
Certifications and Documents Section which will either refer the
requestor to the General Counsel, or if litigation is involved, send
the requestor the Copyright Office's form known as a Litigation
Statement. If a Litigation Statement is required, it must be submitted
on the Office's form, comply with Sec. 201.2(d)(2) (ii), contain an
original signature, and be returned to the Certifications and Documents
Section at the address given in 37 CFR 201.1(c).
(6) Direct public access will not be permitted to any financial or
accounting records, including records maintained on Deposit Accounts.
(7) * * * As the Office updates and revises certain chapters of
Compendium II, it will make the information available on the Copyright
Office's web site. This information is also available for public
inspection and copying in the Certifications & Documents Section.
(c) * * *
(4) The Copyright Office will not respond to any abusive or
scurrilous correspondence or correspondence where the intent is
unknown.
(d) * * *
(2) * * *
(ii) The Copyright Office receives and approves on a form requested
from the Certification and Documents Section, a Litigation Statement
containing a request from an attorney on behalf of either a plaintiff
or defendant in connection with litigation, actual or prospective,
involving a registered work or a work on which registration is sought.
The following information must be included in such a request:
* * * * *
Dated: January 13, 2000.
Marybeth Peters,
Register of Copyrights.