Recordation of Notices of Termination of Transfers and Licenses; clarifications, 3898-3900 [E8-888]

Agencies

• Library of Congress
• Copyright Office
• Copyright Office, Library of Congress

[Federal Register Volume 73, Number 15 (Wednesday, January 23, 2008)]
[Proposed Rules]
[Pages 3898-3900]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-888]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 2008-1]


Recordation of Notices of Termination of Transfers and Licenses; 
clarifications

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: 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.

DATES: Written comments are due February 22, 2008. Reply comments are 
due March 24, 2008.

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 
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.

FOR FURTHER INFORMATION CONTACT: Maria Pallante, Deputy General 
Counsel, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024. 
Telephone (202) 707-8380. Fax (202) 707-8366.

SUPPLEMENTARY INFORMATION:

Background

    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\
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    \1\The provisions exclude grants made by will and works for 
hire.
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    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

[[Page 3899]]

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.
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    \2\The provisions do not apply if the termination right under 
Section 304(c) was previously exercised.
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    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.

Summary of Proposed Amendments

Timeliness of Notices of Termination

    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.

Recordation as Distinguished from Legal Sufficiency

    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.

Legibility of Notices of Termination and Other Documents Pertaining to 
Copyright

    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.)

Fee Requirements for Notices of Termination

    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

[[Page 3900]]

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.

Mailing Address for Notices of Termination

    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).

Conclusion

    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.

List of Subjects in 37 CFR Part 201

    Copyright.

Proposed 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:

PART 201-GENERAL PROVISIONS

    1. The authority citation for part 201 continues to read as 
follows:

    Authority: 17 U.S.C. 702.
    2. Revise Sec.  201.1(b)(2) to read as follows:

Sec.  201.1 Communication with the Copyright Office.

* * * * *
    (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.

Sec.  201.3 [Amended]

    3. Amend Sec.  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 Sec.  201.4(c)(3) to read as follows:

Sec.  201.4 Recordation of transfers and certain other documents.

* * * * *
    (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 Sec.  201.10 read as follows:

Sec.  201.10 Notices of termination of transfers and licenses.

* * * * *
    (f) * * *
    (1) * * *
    (iii) The copy submitted for recordation must be legible per the 
requirements of Sec.  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 Sec.  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 Sec.  201.1(b)(2) of this part.

    Dated: January 14, 2008
Marybeth Peters,
Register of Copyrights.
[FR Doc. E8-888 Filed 1-22-08; 8:45 am]
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