[Federal Register: January 23,
2008 (Volume 73,
37 CFR Part 201
[Docket No. RM 2008-1]
AGENCY: Copyright Office, Library of Congress
ACTION: Notice of Proposed Rulemaking
The Copyright Office is proposing to make clarifications to its regulations governing the recordation of notices of termination and certain related provisions. This notice seeks public comment on the proposed amendments, which would communicate the Office's practices as to notices of termination that are untimely filed; clarify the fact that a notice of termination is not legally sufficient simply because it has been recorded; update the legibility requirements for all recorded documents, including notices of termination; make minor explanatory edits to the fee schedule for multiple titles within a document (adding notices of termination as an example); and create a new mailing address to which notices of termination should be sent.
Written comments are due February 22, 2008. Reply comments are due March 24, 2008.
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 Memorial Building between 8:30 a.m. and 5 p.m. and the envelope should be addressed as follows: Office of the General Counsel, U.S. Copyright Office, James Madison Memorial Building, Room LM-401, First and Independence Avenue, SE, Washington, DC 20559-6000.
If hand delivered by a commercial courier, an original and five copies of any comment must be delivered to the Congressional Courier Acceptance Site located at Second and D Streets, NE, Washington, DC, between 8:30 a.m. and 4 p.m. The envelope should be addressed as follows: Office of the General Counsel, U.S. Copyright Office, Room LM- 403, James Madison Memorial Building, First and Independence Avenue, SE, Washington, DC 20559-6000.
If sent by mail, an original and five copies of any comment should be addressed to: Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024. Comments may not be delivered by means of overnight delivery services such as Federal Express, United Parcel Service or DHL, due to delays in processing receipt of such deliveries.
Maria Pallante, Deputy General Counsel, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024. Telephone (202) 707-8380. Fax (202) 707-8366.
In addition to its legal, regulatory and policy responsibilities, the Copyright Office is an office of public record which receives and records documents that pertain to copyright. Such documents include notices of termination, which may be served by authors (and some heirs of authors) to extinguish certain exclusive or nonexclusive grants of transfers or licenses of copyright or the divisible rights thereunder.
The termination provisions are set forth in Sections 304(c), 304(d) and 203 of the 1976 Copyright Act, Title 17 of the United States Code. The provisions have an equitable function; they exist to allow authors or their heirs a second opportunity to share in the economic success of their works. The House Report accompanying the 1976 Copyright Act states that the provisions are ‘‘needed because of the unequal bargaining position of authors, resulting in part from the impossibility of determining a work’s value until it has been exploited.’’ H.R. Rep. No. 94–1476, at 124 (1976). The law provides for termination according to the time table and prescription set forth in each respective section, including mandatory, timely recordation with the Copyright Office.1
Section 304(c) governs any work in which the copyright was subsisting in its first or renewal term as of January 1, 1978, and provides for termination of a grant at any time during a period of five years beginning at the end of fifty–six years from the date copyright was originally secured. Section 304(d) provides a termination right for a subset of works for which the termination right expired on or before the effective date (October 27, 1998) of the ‘‘Sonny Bono Copyright Term Extension Act,’’ which extended the copyright term by 20 years. Section 304(d) allows an author, or certain heirs and successors, to terminate the grant of a transfer or license of the renewal copyright or any right under it, at anytime during a five year period beginning at the end of 75 years from the date copyright was originally secured.2 Section 203 governs works created on or after January 1, 1978. The author, or certain heirs and successors, may terminate any grant made on or after this date at any time during a period of five years beginning at the end of thirty–five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier. In contrast to the provisions of Section 304, termination under Section 203 is possible only if the author executed the grant.
The termination provisions are not self–executing. On the contrary, they are formalistic and include several conditions precedent. For example, the provisions require that the author (or if the author is deceased, the author’s widow, widower, children or other heirs specified by statute) serve the notice of termination in writing on a grantee or the grantee’s successor in title prior to the effective date of termination which, as referenced above, must fall within a five–year window prescribed by the statutory section. Moreover, the notice must state the effective date of the termination and must be served not less than two or more than ten years before the effective date. And, as a condition of the termination taking effect, a copy of the notice of termination must be recorded with the Copyright Office prior to the effective date of termination. 17 U.S.C. 304(c)(4); 304(d)(1); 203(a)(4).
The process and other formal requirements for submitting a copy of the notice to the Copyright Office for recordation are prescribed by regulation and addressed herein. In short, the regulations require the recording party to submit a complete and exact duplicate of the notice that he or she served on the grantee or grantee’s successor–in–title. The copy must include either actual signatures or reproductions of signatures, a statement setting forth the date the notice was served, an indication of the manner of service, and submission of the appropriate filing fee. The Copyright Office reviews for each of the above–referenced elements and may refuse recordation in the event any one element is missing. 37 CFR 201.10(f).
The requirements of the Copyright Office with respect to document legibility, fee schedule and mailing address are also prescribed by regulation and addressed herein. 37 CFR 201.4(c)(3); 201.3; 201.1.
Under the law, the failure to file a notice of termination in a timely manner is a fatal mistake that cannot be construed as an immaterial, harmless error. 37 CFR 201.10(e). Thus, before recording a notice, the Copyright Office looks for confirmation that the relevant statutory deadlines have been met. Because the Office’s practice in this regard is not currently stated in the regulations, the proposed amendments would introduce a new, explanatory paragraph.
In summary, if in the judgment of the Office the document is untimely, the Office will take one of two actions. If the notice is premature, the Office will return it with an explanation, so that it may be resubmitted within the proper statutory window. On the other hand, if the document is late, the Office will offer only to record and index the document as a ‘‘document pertaining to copyright.’’ 17 U.S.C. 205(a); 37 CFR 201.4(a)(2). It will not accept the document as a ‘‘notice of termination,’’ meaning that it will not be specially indexed as such. Whether such general recordation by the Copyright Office will be sufficient in any particular instance to effect termination as a matter of law is an issue that only the courts may resolve.
By way of clarification, the fact that the Office has recorded a document as a notice of termination does not necessarily mean that the notice is legally sufficient to effect termination. In fact, recordation is without prejudice to any party claiming that the legal and formal requirements for issuing a valid notice have not been met. This denotation already appears in the regulations, but the proposed amendment would rephrase the existing language to provide greater clarity.
With regard to legibility (an issue that affects not only notices of termination but all documents submitted for recordation), the amendments would make a change that is relatively minor but which would nonetheless underscore the mission of the Copyright Office as an office of public record. The current legibility requirement has two prongs, one that applies to the content of the original document and one that applies to its technical quality: ‘‘a document must be legible and capable of being reproduced in legible microform copies.’’ (Emphasis added.) 37 CFR 201.4(c)(3).
No change is proposed as to the first prong. When the Office records a document, it creates an index for the public that reflects the nature of the document and is searchable by certain key information contained in the document, e.g. the title of a work. If the content is indecipherable or difficult to read, the Office cannot create an accurate index. In addition, with respect to copyrighted works, a document that is recorded in the Office provides constructive notice as to the facts stated in the recorded document, provided that identification of the work is such that, after the document is indexed by the Office, it would be reasonably revealed under the title or registration number of the work; and provided that registration has been made for the work. 17 U.S.C. 205(c). Again, if the facts of the document are indecipherable, there can be no accurate indexing, thus preventing the possibility of constructive notice, nor will an illegible document prevail in the event of a conflicting claim of transfer. 17 U.S.C. 205(d).
As to the second prong, the amendment would make a small change by deleting the outdated reference to ‘‘microform copies’’ and replacing it with a broader, more flexible standard. If a document is faded, faint, or similarly difficult to see, the Office may be unable to successfully reproduce it for the public record. Thus, the amended regulation would require that documents be ‘‘legible and capable of being imaged or otherwise reproduced in legible copies by the technology employed by the Office at the time of submission.’’ (Emphasis added.)
With respect to fees, it is the Copyright Office’s experience that parties who submit notices of termination for recordation sometimes miscalculate the amount due, especially where grants of rights in multiple works are being terminated by virtue of one document. The proposed amendment would add the notice of termination as an express example in the schedule of fees under section 201.3(c)(16), specifying that the basic fee for recordation of a notice of termination containing a single title is $95, and the fee for recordation of a notice of termination containing more than one title is an additional $25 per group of 10 titles.
Finally, because notices of termination are time–sensitive, a delay in processing may have serious consequences. The proposed amendment would create a special post office box at the Copyright Office, from which notices of termination could more easily be sorted and routed for recordation. This revision would also delete the address for the Copyright Arbitration Royalty Panel (CARP). All CARP proceedings were terminated in 2007 and the reference is no longer valid. 72 FR 45071 (August 10, 2007).
We hereby seek comment from the public as to the issues identified herein associated with certain requirements of the Copyright Office under Sections 201.1, 201.3, 201.4 and 201.10 of Chapter 37 of the Code of Federal Regulations.
For the reasons set forth in the preamble, the Copyright Office proposes to amend part 201 of title 37 of the Code of Federal Regulations as follows:
1. The authority citation for part 201 continues to read as follows:
Authority: 17 U.S.C. 702.
2. Revise § 201.1(b)(2) to read as follows:
* * * * *
(b) * * *
(2) Notices of Termination. Notices of termination submitted for recordation should be mailed to Copyright Office, Notices of Termination, P.O. Box 71537, Washington, DC 20024–1537.
3. Amend § 201.3(c)(16) by removing the phrase, ‘‘Recordation of document, including a Notice of Intention to Enforce (NIE)(single title),’’ and adding in its place the phrase ‘‘Recordation of document (single title), e.g. a Notice of Termination or a Notice of Intent to Enforce (NIE)’’.
4. Revise § 201.4(c)(3) to read as follows:
* * * * *
(c) * * *
(3) To be recordable, the document must be legible and capable of being imaged or otherwise reproduced in legible copies by the technology employed by the Office at the time of submission.
* * * * *
5. Section 201.10(f) is amended as follows:
a. By adding paragraph (f)(1)(iii);
b. By redesignating paragraph (f)(4) as (f)(5);
c. By adding paragraph (f)(4);
d. By revising redesignated paragraph (f)(5) and
e. By adding paragraph (f)(6). The revisions and additions to § 201.10 read as follows:
* * * * *
(f) * * *
(1) * * *
(iii) The copy submitted for recordation must be legible per the requirements of § 201.4(c)(3) of this part.
* * * * *
(4) Notwithstanding anything to the contrary in this section, the Copyright Office reserves the right to refuse recordation of a notice of termination if, in the judgment of the Copyright Office, such notice of termination is untimely. If a document is submitted as a notice of termination after the statutory deadline has expired, the Office will offer to record the document as a ‘‘document pertaining to copyright’’ pursuant to § 201.4(c)(3) of this part, but the Office will not index the document as a notice of termination. Whether a document so recorded is sufficient in any instance to effect termination as a matter of law shall be determined by a court of competent jurisdiction.
(5) The mere fact that a notice of termination has been recorded does not mean that it is legally sufficient. Recordation of a notice of termination by the Copyright Office is without prejudice to any party claiming that the legal and formal requirements for issuing a valid notice have not been met.
(6) Notices of termination should be submitted to the address specified in § 201.1(b)(2) of this part.
1 The provisions exclude grants made by will and works for hire.
2 The provisions do not apply if the termination right under Section 304(c) was previously exercised.
Dated: January 14, 2008.
Register of Copyrights.