[Federal Register: July 13, 2004 (Volume 69, Number 133)]
[Proposed Rules]
[Page 42004-42007]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jy04-30]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Parts 202, 211 and 212
[Docket No. RM 2004-5]
Reconsideration Procedure
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking.
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SUMMARY: With a few modifications, this notice of proposed rulemaking
continues procedures adopted by the U.S. Copyright Office in 1995 that
permit copyright applicants to request reconsideration of its decisions
to refuse registration. The purpose of this notice of proposed
rulemaking is to amend those procedures and incorporate them into
Copyright Office regulations. This proposal continues to give copyright
applicants two opportunities to seek reconsideration of a Copyright
Office decision to refuse registration. A significant modification is
that the procedures are also made applicable to the Office's refusals
to register mask works and vessel hull designs.
DATES: Comments are due by September 13, 2004. Reply comments are due
by October 26, 2004.
ADDRESSES: If hand delivered by a private party, an original and five
copies of any comment should be brought to: Room LM-401 of the James
Madison Memorial Building and addressed as follows: Office of the
General Counsel, U.S. Copyright Office, James Madison Memorial
Building, Room LM-401, 101 Independence Avenue, S.E., Washington, D.C.
20559-6000. If delivered by a commercial, non-government courier or
messenger, an original and five copies of any comment must be delivered
to the Congressional Courier Acceptance Site located at 2nd and D
Streets, N.E. between 8:30 a.m. and 4 p.m. The envelope should be
addressed as follows: Copyright Office General Counsel, Room LM-403,
James Madison Memorial Building, 101 Independence Avenue, S.E.,
Washington, D.C. If sent by mail, an original and five copies of any
comment should be addressed to: GC/I&R, P.O. Box 70400, Southwest
Station, Washington D.C. 20024-0400. Comments may not be delivered by
means of overnight delivery services such as Federal Express, United
Parcel Service, etc., due to delays in processing receipt of such
deliveries.
FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Associate
General Counsel, or Renee Coe, Senior Attorney. Telephone: (202) 707-
8380. Telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION:
I. Background
The Copyright Office is responsible for registering copyright
claims submitted by authors or other copyright claimants. 17 U.S.C.
410(a). In fiscal year 2003, the Copyright Office issued 534,122
copyright registrations, many of which covered multiple works.
Although copyright protection is automatic, copyright law provides
important benefits for enforcing rights that are only available to
owners who register their claims. In fact, a suit for copyright
infringement of a United States work cannot be instituted unless a
copyright claimant has submitted an application to register the work
with the Copyright Office. 17 U.S.C. 411(a). Even if the Copyright
Office ultimately refuses to register the work, a copyright owner is
entitled to institute an infringement action.
There are other benefits, too. When a certificate of registration
contains an effective date that is either before publication or within
five years after publication, a court is required to treat it as prima
facie evidence of the validity of the copyright and the facts stated in
the certificate. 17 U.S.C. 410(c). In an infringement suit, attorney's
fees or statutory damages may not be awarded for an unpublished work if
its effective registration date is after the commencement of the
infringement, or for a published work if its effective registration
date is after commencement of the infringement and more than three
months after first publication of the work. 17 U.S.C. 412.
Subsections 410(a) and (b) of title 17 of the United States Code
set forth the Copyright Office's role in examining and registering
copyright claims, including the authority to refuse registration:
(a) When, after examination, the Register of Copyrights determines
that, in accordance with the provisions of this title, the material
deposited constitutes copyrightable subject matter and that the other
legal and formal requirements of this title have been met, the Register
shall register the claim and issue to the applicant a certificate of
registration under the seal of the Copyright Office. The certificate
shall contain the information given in the application, together with
the number and effective date of the registration.
(b) In any case in which the Register of Copyrights determines
that, in accordance with the provisions of this title, the material
deposited does not constitute copyrightable subject matter or that the
claim is invalid for any other reason, the Register shall refuse
registration and shall notify the applicant in writing of the reasons
for such refusal.
In fiscal year 2003, the Copyright Office refused to register 7,241
copyright claims, less than two percent of the number of registrations
issued.
In 1995, the Copyright Office established interim procedures for
reconsidering its refusals to register copyright claims. 60 FR 21983
(May 4, 1995). The interim procedures amended section 606.04 of the
practices found in Compendium of Copyright Office Practices II (1984).
Prior to 1995, an applicant had two opportunities to request that the
Office reconsider its refusal to register a claim, but both requests
were reviewed in the Examining Division. The 1995 interim procedures
established a Board of Appeals to review second requests for
reconsideration. The purpose of this notice is to amend the 1995
procedures and to incorporate them into title 37 of the U.S. Code of
Federal Regulations.
II. Changes Proposed by the Notice of Proposed Rulemaking
This proposed rulemaking includes changing the name of the
Copyright Office ``Board of Appeals'' to the ``Review Board.'' The
Office is proposing this name change to communicate more accurately the
nature of the proceedings involved at the second level of
reconsideration. This notice also provides that a decision by the
Review Board constitutes final agency action.
Another significant change is to clarify that reconsideration
proceedings are also available for requests to reconsider Copyright
Office refusals to register claims in mask works and vessel hull
designs each which have a unique
[[Page 42005]]
form of protection that is separate from copyright protection. The
Copyright Office registers claims in mask works under chapter 9 of
title 17 of the United States Code. Pub. L. No. 98-620, 98 Stat. 3335,
3347. It registers claims in vessel hull designs under chapter 13 of
title 17 of the United States Code. Pub. L. No. 105-304, 112 Stat.
2860, 2905. As with copyright claims, the Copyright Office examines
submissions to register mask works, 13 CFR part 211, and vessel hull
designs, 13 CFR part 212, to determine whether they satisfy legal
requirements for registration. If they do not, the Office may refuse
registration.
In fiscal year 2003, the Copyright Office registered 397 mask works
and 45 vessel hull designs; it refused to register seven claims in mask
works and one claim in a vessel hull design.\1\
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\1\ Five mask works were rejected because they were not eligible
under the statute, and two were rejected because the two-year filing
dead line was missed. The vessel hull design was rejected for
failure to meet the filing deadline.
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III. Summary of Procedures
This notice of proposed rulemaking establishes procedures for
applicants to request that the Copyright Office reconsider refusals to
register copyright claims and claims in mask works or vessel hull
designs. There are two opportunities for reconsideration of a refusal
to register. At the first level of reconsideration, the Examining
Division of the Copyright Office reviews its initial decision to refuse
registration. At the second level, the Review Board will conduct the
review of a refusal to register. The Review Board is composed of the
Register of Copyrights, the General Counsel, and the Chief of the
Examining Division, or their respective designees.
An applicant may make a first request for reconsideration after he
or she receives a written notice from the Examining Division explaining
why the Division initially refused to register the applicant's claim.
The request must be in writing and set forth the reasons for the
applicant's objections, including any legal considerations.
The applicable fee for a first request for reconsideration, as set
forth in 37 CFR 201.3(d)(4), must accompany the written request for
reconsideration. The written request must be received by the Copyright
Office no later than three months from the date that appears in the
written notice of its initial decision to refuse registration. The
Examining Division bases its decision on all of an applicant's written
submissions. It does not hear oral argument in support of the request
for reconsideration.
If the Examining Division decides a work is entitled to be
registered, it notifies the applicant in writing of that decision and
the work is registered. However, if the Examining Division upholds its
initial refusal to register, it sends the applicant a written
notification stating the reasons for refusal within four months from
the date the Division receives the first request for reconsideration.
Failure by the Examining Division to issue a written notification
within four months does not result in registration of the applicant's
work.
Upon receiving written notice that the Examining Division has again
refused registration, an applicant may seek a second reconsideration by
submitting a written request to the Review Board. With minor
differences, the procedures for the second reconsideration by the Board
are similar to the procedures for the first.
The second request for reconsideration must also be in writing and
set forth the reasons for the applicant's objections, including any
legal considerations. The applicable fee for a second request, as set
forth in Sec. 201.3(d)(4), must accompany the written request for
reconsideration. This request must be received by the Copyright Office
no later than three months from the date that appears in the written
notice of the Examining Division's decision to refuse registration in
response to the first request for reconsideration. The Board will base
its decision on an applicant's written submissions and will not hear
oral argument in support of the second request for reconsideration.
If the Review Board decides a work is entitled to be registered, it
will notify the applicant of that decision and the work will be
registered. However, if the Board upholds the Examining Division's
refusal to register, it will send the applicant a written notification
stating the reasons for refusal. A decision by the Review Board
constitutes final agency action.
This notice of proposed rulemaking provides addresses for hand
delivery and mailing correspondence for both the first and second
requests for reconsideration. The Copyright Office continues to
experience delays in the delivery of mail whether sent through the U.S.
Postal Service or a private carrier, such as Federal Express, due to
procedures designed to mitigate security risks.
If a request for a reconsideration sent timely arrives after the
proposed deadline, the Office will apply the regulation on postal
disruptions, 37 CFR 201.8, to determine the timeliness of the filing.
However, claimants who wish to obtain prompt reconsideration of
refusals to register would be well-advised to consider delivery by hand
to the appropriate address given in this Notice.
To ensure delivery for any correspondence relating to both first
and second requests for reconsideration, the address on the outside
envelope should be the one provided in the proposed regulation for the
Copyright R&P Division Office. That address should be used no matter
how the correspondence is delivered, whether sent through the U.S.
Postal Service, through another mail carrier or by hand delivery. To
ensure correct routing and handling of correspondence within the
Copyright Office, the regulation also requires that the word
``RECONSIDERATION'' must be clearly indicated on the first line of the
address appearing on the envelope. For the cover letter accompanying a
request for reconsideration, the subject line should indicate the
Copyright Office control number assigned to applications and either
``FIRST RECONSIDERATION'' or ``SECOND RECONSIDERATION,'' as
appropriate.
Regulatory Flexibility Act Statement
Although the Copyright Office, as a department of the Library of
Congress and part of the Legislative Branch, is not an ``agency''
subject to the Regulatory Flexibility Act, 5 U.S.C. 601-612, the
Register of Copyrights has considered the effect of the proposed
amendment on small businesses. The Register has determined that the
amendments would not have a significant economic impact on a
substantial number of small business entities that would require a
provision of special relief for them. The proposed amendments are
designed to minimize any significant economic impact on small business
entities.
List of Subjects in 37 CFR Part 202
Copyright, Mask works, Reconsideration of refusal to register
claims, Vessel Hulls.
Proposed Regulations
In consideration of the foregoing, the Copyright Office proposes to
amend parts 202, 211 and 212 of 37 CFR, chapter II in the manner set
forth below:
PART 202-REGISTRATION OF CLAIMS TO COPYRIGHT
1. The authority citation for part 202 would continue to read as
follows:
Authority: 17 U.S.C. 702.
2. Add Sec. 202.5 to read as follows:
[[Page 42006]]
Sec. 202.5 Reconsideration Procedure for Refusals to Register.
(a) General. This section prescribes rules pertaining to procedures
for administrative review of the Copyright Office's refusal to register
a claim to copyright, a mask work, or a vessel hull design upon a
finding by the Office that the application for registration does not
satisfy the legal requirements of title 17 of the United States Code.
If an applicant's initial claim is refused, the applicant is entitled
to request that the initial refusal to register be reconsidered.
(b) First reconsideration. Upon receiving a written notification
from the Examining Division explaining the reasons for a refusal to
register, an applicant may request that the Examining Division
reconsider its initial decision to refuse registration, subject to the
following requirements:
(1) An applicant must request in writing that the Examining
Division reconsider its decision. A request for reconsideration must
include the reasons the applicant believes registration was improperly
refused, including any legal arguments in support of those reasons and
any supplementary information. The Examining Division will base its
decision on the applicant's written submissions.
(2) The fee set forth in Sec. 201.3(d)(4) of this chapter must
accompany the first request for reconsideration.
(3) The first request for reconsideration and the applicable fee
must be received by the Copyright Office no later than three months
from the date that appears in the Examining Division's written notice
of its initial decision to refuse registration. When the ending date
for the three-month time period falls on a weekend or a federal
holiday, the ending day of the three-month period shall be extended to
the next federal work day.
(4) If the Examining Division decides to register an applicant's
work in response to the first request for reconsideration, it will
notify the applicant in writing of the decision and the work will be
registered. However, if the Examining Division again refuses to
register the work, it will send the applicant a written notification
stating the reasons for refusal within four months of the date on which
the first request for reconsideration is received by the Examining
Division. When the ending date for the four-month time period falls on
a weekend or a federal holiday, the ending day of the four-month period
shall be extended to the next federal work day. Failure by the
Examining Division to send the written notification within the four-
month period shall not result in registration of the applicant's work.
(c) Second reconsideration. Upon receiving written notification of
the Examining Division's decision to refuse registration in response to
the first request for reconsideration, an applicant may request that
the Review Board reconsider the Examining Division's refusal to
register, subject to the following requirements:
(1) An applicant must request in writing that the Review Board
reconsider the Examining Division's decision to refuse registration.
The second request for reconsideration must include the reasons the
applicant believes registration was improperly refused, including any
legal arguments in support of those reasons and any supplementary
information, and must address the reasons stated by the Examining
Division for refusing registration upon first reconsideration. The
Board will base its decision on the applicant's written submissions.
(2) The fee set forth in Sec. 201.3(d)(4) of this chapter must
accompany the second request for reconsideration.
(3) The second request for reconsideration and the applicable fee
must be received in the Copyright Office no later than three months
from the date that appears in the Examining Division's written notice
of its decision to refuse registration after the first request for
reconsideration. When the ending date for the three-month time period
falls on a weekend or a federal holiday, the ending day of the three-
month period shall be extended to the next federal work day.
(4) If the Review Board decides to register an applicant's work in
response to a second request for reconsideration, it will notify the
applicant in writing of the decision and the work will be registered.
If the Review Board upholds the refusal to register the work, it will
send the applicant a written notification stating the reasons for
refusal.
(d) (1) All mail, including any that is hand delivered, should be
addressed as follows: RECONSIDERATION, Copyright R&P Division, P.O. Box
71380, Washington, DC 20024-1380. If hand delivered by a commercial,
non-government courier or messenger, a request for reconsideration must
be delivered between 8:30 a.m. and 4 p.m. to: Congressional Courier
Acceptance Site, located at Second and D Streets, NE, Washington, DC.
If hand delivered by a private party, a request for reconsideration
must be delivered between 8:30 a.m. and 5 p.m. to: Room 401 of the
James Madison Memorial Building, located at 101 Independence Avenue,
SE, Washington, DC.
(2) The first page of the written request must contain the
Copyright Office control number and clearly indicate either ``FIRST
RECONSIDERATION'' or ``SECOND RECONSIDERATION,'' as appropriate, on the
subject line.
(e) For any particular request for reconsideration, the provisions
relating to the time requirements for submitting a request under this
Sec. 202.5 may be suspended or waived, in whole or in part, by the
Register of Copyrights upon a showing of good cause. Such suspension or
waiver shall apply only to the request at issue and shall not be
relevant with respect to any other request for reconsideration from
that applicant or any other applicant.
(f) Composition of the Review Board. The Review Board shall consist
of the Register of Copyrights, the General Counsel, and the Chief of
the Examining Division, or their respective designees.
(g) Final Agency Action. A decision by the Review Board in response
to a second request for reconsideration constitutes final agency
action.
PART 211--MASK WORK PROTECTION
3. The authority citation for part 211 continues to read as
follows:
Authority: 17 U.S.C. 702 and 908.
4. Add Sec. 211.7 to read as follows:
Sec. 211.7 Reconsideration procedure for refusals to register.
The requirements prescribed in Sec. 202.5 of this chapter for
reconsideration of refusals to register copyright claims are applicable
to requests to reconsider refusals to register mask works under 17
U.S.C. chapter 9, unless otherwise required by this part.
PART 212--PROTECTION OF VESSEL HULL DESIGNS
5. The authority citation for part 212 continues to read as
follows:
Authority: 17 U.S.C. chapter 13.
6. Add Sec. 212.7 to read as follows:
Sec. 212.7 Reconsideration procedure for refusals to register.
The requirements prescribed in Sec. 202.5 of this chapter for
reconsideration of refusals to register copyright claims are applicable
to requests to reconsider refusals to register vessel hull designs
under 17 U.S.C. chapter 13, unless otherwise required by this part.
[[Page 42007]]
Dated: July 8, 2004.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 04-15853 Filed 7-12-04; 8:45 am]
BILLING CODE 1410-33-S