Gap in Termination Provisions, 72771-72773 [2010-29743]

Agencies

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

[Federal Register Volume 75, Number 227 (Friday, November 26, 2010)]
[Proposed Rules]
[Pages 72771-72773]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-29743]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 2010-5]


Gap in Termination Provisions

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: The Copyright Office is proposing to amend its regulations 
governing notices of termination of certain grants of transfers and 
licenses of copyright under section 203 of the Copyright Act of 1976. 
The amendments are intended to clarify the recordation practices of the 
Copyright Office regarding the content of section 203 notices of 
termination and the timeliness of their service and recordation, 
including a clarification that the Office will accept for recordation 
under section 203 a notice of termination of a grant agreed to before 
January 1, 1978 as long as the work that is the subject of the grant 
was not created before 1978. Whether such notices of termination fall 
within the scope of section 203 will ultimately be a matter to be 
resolved by the courts.

DATES: Comments on the Notice of Proposed Rulemaking and Requests for 
Comments are due on or before December 27, 2010.

ADDRESSES: The Copyright Office strongly prefers that comments be 
submitted electronically. A comment page containing a comment form is 
posted on the Copyright Office Web site at https://www.copyright.gov/docs/termination. The Web site interface requires submitters to 
complete a form specifying name and organization, as applicable, and to 
upload comments as an attachment via a browse button. To meet 
accessibility standards, all comments must be uploaded in a single file 
in either the Adobe Portable Document File (PDF) format that contains 
searchable, accessible text (not an image); Microsoft Word; 
WordPerfect; Rich Text Format (RTF); or ASCII text file format (not a 
scanned document). The maximum file size is 6 megabytes (MB). The name 
of the submitter and organization should appear on both the form and 
the face of the comments. All comments will be posted publicly on the 
Copyright Office Web site exactly as they are received, along with 
names and organizations. If electronic submission of comments is not 
feasible, please contact the

[[Page 72772]]

Copyright Office at 202-707-8125 for special instructions.

FOR FURTHER INFORMATION CONTACT: Amanda Wilson Denton, Counsel for 
Policy and International Affairs, by telephone at 202-707-8125 or by 
electronic mail at amwi@loc.gov.

SUPPLEMENTARY INFORMATION:

Background

    The Copyright Act gives authors (and some heirs, beneficiaries and 
representatives who are specified by statute) the right to terminate 
certain grants of transfers or licenses within the time frames set 
forth in the statute and subject to the execution of certain conditions 
precedent. Termination rights (also referred to as ``recapture 
rights'') are equitable accommodations under the law. They allow 
authors or their heirs a second opportunity to share in the economic 
success of their works. Codified in sections 304(c), 304(d) and 203 of 
Title 17, respectively, they encompass grants made before as well as 
after January 1, 1978 (the effective date of the 1976 Copyright Act). 
However, the provisions do not apply to copyrights in works made for 
hire or grants made by will. Sections 304(c) and 304(d) establish 
termination rights for works subject to grants of transfers or licenses 
of copyright (or of any right under a copyright) made before January 1, 
1978, the effective date of the 1976 Copyright Act. Section 203, which 
is the subject of this proposed rulemaking, establishes termination 
rights for works subject to grants of transfers or licenses executed by 
the author on or after the effective date of the 1976 Copyright Act.
    This proposed rulemaking is intended to address a narrow fact 
pattern that was the subject of a notice of inquiry after some authors 
and their representatives brought concerns to the attention of the 
Copyright Office and some Congressional Offices. In a Federal Register 
Notice dated March 29, 2010 (75 FR 15390), the Office sought comments 
as to whether or how the termination provisions apply in circumstances 
where a grant was agreed to prior to January 1, 1978, but the work in 
question was created on or after January 1, 1978. In response to the 
Notice of Inquiry, the Copyright Office received sixteen initial 
comments and nine reply comments. These comments are available online 
on the Copyright Office Web site, at https://www.copyright.gov/docs/termination/.
    Several of those commenters took the position that the termination 
right provided in section 203 of the Copyright Act should be available 
under the circumstances in question. They based this position on a 
number of legal and policy arguments, prominent among which was the 
argument that a grant is not fully executed under the law until the 
relevant work has been created. Therefore, pre-1978 grants for works 
not created until January 1, 1978 or later should be subject to 
termination under section 203. See, e.g., Comment of Jane C. Ginsburg, 
Columbia University Law School at page 1; and Comment of Kenneth D. 
Freundlich, Freundlich Law, and Neil W. Netanel, UCLA Law School, at 
pages 5-6. This argument is closely related to the idea that the rights 
created by title 17 can vest only in actual works of authorship, making 
the creation date of the work central to the point in time at which any 
right under the Copyright Act, including the termination right, may be 
transferred. See, e.g., Comment of Randall D. Wixen, Wixen Music 
Publishing, Inc., at 1. Several commenters also cited the legislative 
history of the 1976 Copyright Act and the express exceptions that are 
found within the termination provisions as evidence that Congress did 
not intend to preclude termination of pre-1978 grants of works created 
on or after January 1, 1978. See, e.g., Comment of Bill Gable, Law 
Offices of Bill Gable, at page 2; and Comment of Niels Schaumann, 
William Mitchell College of Law, at page 4.
    At least one comment, however, expressed skepticism that section 
203 should apply to any fact patterns in which grants were made prior 
to January 1, 1978. It observed that there is some evidence that 
``Congress may have intended the term executed to mean signed'' in 
other sections of the Copyright Act and that prior to the enactment of 
the Copyright Act of 1976, publications by the Copyright Office had 
expressed views consistent with the conclusion that a grant should be 
considered to be executed on the date the grant was signed. See Reply 
Comment of the Recording Industry Association of America, Inc. 
(``RIAA''), at pages 2-3.
    Based on the comments received, the Copyright Office believes that 
there are legitimate grounds to assert that, in the case of a grant 
signed (or, in the case of an oral license, agreed to) before January 
1, 1978 regarding rights in a work not created until January 1, 1978 or 
later, such a grant cannot be ``executed'' until the work exists. 
Therefore, the Office will record a notice of termination in such a 
case so long as the notice states that the grant was executed on a 
specified date that is on or after January 1, 1978. A person serving 
and submitting a notice of termination based on the rationale described 
above would be justified in including in the notice, as the date of 
execution of the grant, the date that the work was created. For 
purposes of clearly identifying the grant being terminated, it may be 
useful also to state the date the grant was signed. The Office's 
recordation of such notices of termination is without prejudice as to 
how a court might ultimately rule on whether the document is a notice 
of termination within the scope of section 203. See 37 CFR 
201.10(f)(5).
    Through the proposed regulatory amendments, the Office seeks to 
provide immediate practical guidance in light of the fact that the 
first deadlines for serving notices of section 203 terminations for 
grants executed in 1978 (if the terminating party wishes to terminate 
on the earliest possible date) will begin to expire next year. The 
amendments clarify that, consistent with existing recordation 
practices, the Office reserves the right to refuse a document for 
recordation as a section 203 notice of termination if the date of 
execution of the grant, as reflected in the document submitted as a 
notice of termination, falls before January 1, 1978. This practice is 
consistent with the law (17 U.S.C. 203(a)) and the existing regulations 
(37 CFR 201.10(b)(2)). The proposed amendments to the regulations 
underscore the consequences of failure on the part of an author or his 
heirs to comply with this aspect of section 203(a) of the Copyright 
Act, which can prevent recordation of the document as a notice of 
termination. Failure to record a notice of termination in a timely 
manner is a fatal error that will prevent termination from taking 
effect.
    The Office also takes the opportunity in this proposed rulemaking 
to clarify certain circumstances under which the Office will refuse to 
index as notices of termination documents submitted under section 203, 
for reason of certain procedural failures drawn from the clear language 
of the Copyright Act. These circumstances include a date of execution 
of the grant that falls before January 1, 1978 (as discussed above), an 
effective date of termination that does not fall within the allowed 
statutory period (17 U.S.C. 203(a)(3)), improperly timed service of the 
notice of termination (17 U.S.C. 203(a)(4)(A)), or submission of 
documents for recordation as notice of termination on or after the 
effective date of termination (17 U.S.C. 203(a)(4)(A)). These 
circumstances are not intended to be an exhaustive list of procedural 
failures that may result in failure to record notices of termination.

[[Page 72773]]

List of Subjects in 37 CFR Part 201

    Copyright.

Proposed Regulations

    In consideration of the foregoing, the Copyright Office proposes to 
amend part 201 of 37 CFR, as follows:

PART 201--GENERAL PROVISIONS

    1. The authority citation for part 201 reads as follows:

    Authority:  17 U.S.C. 702; Section 201.10 also issued under 17 
U.S.C. 203 and 304.

    2. Amend Sec.  201.10 by revising paragraph (f)(4) as follows:


Sec.  201.10  Notices of termination of transfers and licenses.

* * * * *
    (f) * * *
    (4) Notwithstanding anything to the contrary in this section, the 
Copyright Office reserves the right to refuse recordation of a notice 
of termination as such if, in the judgment of the Copyright Office, 
such notice of termination is untimely. Conditions under which a notice 
of termination will be considered untimely include: the date of 
execution stated therein does not fall on or after January 1, 1978, as 
required by section 203(a) of title 17, United States Code; the 
effective date of termination does not fall within the five-year period 
described in section 203(a)(3) of title 17, United States Code; or the 
documents submitted indicate that the notice of termination was served 
less than two or more than ten years before the effective date of 
termination. If a notice of termination is untimely or if a document is 
submitted for recordation as a notice of termination on or after the 
effective date of termination, the Office will offer to record the 
document as a ``document pertaining to copyright'' pursuant to Sec.  
201.4(c)(3), but the Office will not index the document as a notice of 
termination. Any dispute as to 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.
* * * * *

    Dated: November 19, 2010.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 2010-29743 Filed 11-24-10; 8:45 am]
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