Modernizing Copyright Recordation, 22771-22780 [2017-09810]

Download as PDF Federal Register / Vol. 82, No. 95 / Thursday, May 18, 2017 / Proposed Rules Issued in Renton, Washington, on May 10, 2017. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. 2017–10030 Filed 5–17–17; 8:45 am] BILLING CODE 4910–13–P LIBRARY OF CONGRESS Copyright Office 37 CFR Part 201 [Docket No. 2017–7] Modernizing Copyright Recordation U.S. Copyright Office, Library of Congress. ACTION: Notice of proposed rulemaking. AGENCY: The United States Copyright Office is proposing to amend its regulations governing recordation of transfers of copyright ownership, notices of termination, and other documents pertaining to a copyright. These amendments are being proposed in conjunction with the anticipated commencement of development effort for a modernized electronic recordation system. DATES: Written comments must be received no later than 11:59 p.m. Eastern Time on July 17, 2017. ADDRESSES: For reasons of government efficiency, the Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office Web site at https:// www.copyright.gov/rulemaking/ recordation-modernization. If electronic submission of comments is not feasible due to lack of access to a computer and/ or the internet, please contact the Office using the contact information below for special instructions. FOR FURTHER INFORMATION CONTACT: Sarang V. Damle, General Counsel and Associate Register of Copyrights, by email at sdam@loc.gov, or Jason E. Sloan, Attorney-Advisor, by email at jslo@loc.gov. Each can be contacted by telephone by calling (202) 707–8350. SUPPLEMENTARY INFORMATION: jstallworth on DSK7TPTVN1PROD with PROPOSALS SUMMARY: I. Background Since 1870, the U.S. Copyright Office has recorded documents pertaining to works under copyright, such as assignments, licenses, and grants of security interests. Relevant here are the VerDate Sep<11>2014 12:41 May 17, 2017 Jkt 241001 three primary types of documents submitted to the Copyright Office for recordation: Transfers of copyright ownership,1 other documents pertaining to a copyright,2 and notices of termination.3 Pursuant to 17 U.S.C. 205(a), ‘‘[a]ny transfer of copyright ownership or other document pertaining to a copyright may be recorded in the Copyright Office if’’ certain conditions are met.4 Under the Copyright Act’s notice of termination provisions in sections 203(a)(4) and 304(c)(4), ‘‘[a] copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect,’’ and such ‘‘notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.’’ 5 These provisions also apply to section 304(d)(1), another termination provision, which incorporates section 304(c)(4) by reference.6 More broadly, section 702 of the Act authorizes the Register of Copyrights to ‘‘establish regulations . . . for the administration of the functions and duties made the responsibility of the Register under [title 17],’’ and section 705(a) requires that the Register ‘‘ensure that records of . . . recordations . . . are maintained, and that indexes of such records are prepared.’’ 7 Congress has encouraged the submission of documents for recordation by providing certain legal entitlements as a consequence of 1 A ‘‘transfer of copyright ownership’’ is defined in section 101 of the Copyright Act as ‘‘an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.’’ 17 U.S.C. 101. Their validity is governed by 17 U.S.C. 204. 2 A document ‘‘pertaining to a copyright’’ is currently defined by the Office as one that ‘‘has a direct or indirect relationship to the existence, scope, duration, or identification of a copyright, or to the ownership, division, allocation, licensing, transfer, or exercise of rights under a copyright. That relationship may be past, present, future, or potential.’’ 37 CFR 201.4(a)(2). 3 A ‘‘notice of termination’’ is a notice that terminates a grant to a third party of a copyright in a work or any rights under a copyright. Only certain grants may be terminated, and only in certain circumstances. Termination is governed by three separate provisions of the Copyright Act, with the relevant one depending on a number of factors, including when the grant was made, who executed it, and when copyright was originally secured for the work. See 17 U.S.C. 203, 304(c), 304(d). 4 17 U.S.C. 205(a); see also id. at 205(b) (‘‘The Register of Copyrights shall, upon receipt of a document as provided by subsection (a) and of the fee provided by section 708, record the document and return it with a certificate of recordation.’’). 5 Id. at 203(a)(4), 304(c)(4). 6 Id. at 304(d)(1). 7 Id. at 702, 705(a). PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 22771 recordation. For example, recordation provides constructive notice of the facts stated in the recorded document when certain conditions are met.8 In addition, recordation is a condition for the legal effectiveness of notices of termination.9 Thus, the Office has an important interest in ensuring that the public record of copyright transactions is as timely, complete, and accurate as possible. The current recordation process is a time-consuming and labor-intensive paper-based one, requiring remitters to submit their documents in hard copy. Once received, Office staff must, among other things, digitize the paper document, process the fee payment including confirming that the correct fee was submitted, examine the document to confirm its eligibility for recordation, search through the document for various and often extensive indexing information, manually input such information into the Office’s public catalog, and print and mail back to the remitter a copy of the document marked as having been recorded along with a certificate of recordation. This process can also involve considerable correspondence with remitters to remedy deficient submissions before they can be recorded. Since late 2014, the Office has permitted remitters to submit some indexing information in electronic form, limited to lists of titles of the works associated with the submitted document, but this too can involve a significant amount of correspondence with remitters and manual input on the part of staff to complete the recordation.10 Furthermore, electronic submission of documents remains unavailable. The Office is seeking to modernize this process in coming years by developing a fully electronic, online system through which remitters will be able to submit their documents and all applicable indexing information to the Office for recordation. The amendments proposed today are designed to update the Office’s current regulations to govern the submission of documents to the Office for recordation once the new electronic system is developed and launched. Though the Office cannot currently estimate how long it will take to complete the new system, the Office is seeking public comments at this time because the Office must, at present, make a number of policy decisions critical to the design of the to-bedeveloped system. Additionally, while 8 Id. at 205(c). at 203(a)(4)(A), 304(c)(4)(A), 304(d)(1). 10 See 37 CFR 201.4(c)(4); 79 FR 55633 (Sept. 17, 2014). 9 Id. E:\FR\FM\18MYP1.SGM 18MYP1 22772 Federal Register / Vol. 82, No. 95 / Thursday, May 18, 2017 / Proposed Rules the proposed amendments are designed with a new electronic submission system in mind, at least some of the proposed changes could be implemented in the near future, without the new system (e.g., accepting electronically signed documents and new requirements for electronic title lists, completeness, and redactions). Thus, to the extent possible under the Office’s current paper system, and depending on the comments received in response to this notice, the Office plans to adopt some aspects of the proposed rule on an interim basis until such time as the electronic system is complete and a final rule is enacted. The proposed amendments are a continuation of the discussion that began in 2014, when the Office issued a notice of inquiry soliciting public comments on certain aspects of recordation modernization.11 After receiving written comments from 24 stakeholders, the Office held roundtable meetings in California and New York where 48 participants provided further input.12 This public process led to a 133-page report by the Office’s inaugural Abraham L. Kaminstein Scholar in Residence, Professor Robert Brauneis: Transforming Document Recordation at the United States Copyright Office (the ‘‘Brauneis Report’’). Many of the provisions in the proposed amendments adopt or are based on the recommendations set forth in the Brauneis Report. jstallworth on DSK7TPTVN1PROD with PROPOSALS II. The Proposed Rules A. Transfers of Copyright Ownership and Other Documents Pertaining to a Copyright The proposed amendment to 37 CFR 201.4 will provide a number of necessary updates to the Office’s regulations governing submission for recordation of transfers of copyright ownership and other documents pertaining to a copyright. The general mechanics of the proposed amendment are essentially the same as under the Office’s current rules and policies. To be eligible for recordation, the document must satisfy certain requirements, be submitted properly, and be accompanied by the applicable fee. As before, the date of recordation will be the date when all of the required elements are received by the Office, and the Office may reject any document submitted for recordation that fails to 11 79 FR 2696 (Jan. 15, 2014). Brauneis, Transforming Document Recordation at the U.S. Copyright Office 8 (Dec. 2014), https://www.copyright.gov/docs/recordation/ recordation-report.pdf. [hereinafter Brauneis Report]. 12 Robert VerDate Sep<11>2014 12:41 May 17, 2017 Jkt 241001 comply with the Office’s rules and instructions. Electronic Submissions. The Office proposes permitting remitters to submit documents for recordation electronically through a to-be-developed online system. It is planned that the new system will essentially require remitters to provide four things: The document to be recorded, indexing information about the document (i.e., information necessary for the Office’s public catalog), assent to various certifying statements, and payment of the applicable fee.13 Rather than continuing to have Office staff search the document for the relevant indexing information and manually input it into the Office’s public catalog, the system will instead, as recommended by the Brauneis Report,14 walk the remitter through the process of providing indexing information directly, which will likely include a bulk-upload feature for documents that pertain to a large number of works. Having the remitter provide this information will be far more efficient than the current process and will allow the Office to record documents much faster and for smaller fees. It should also reduce the chance of errors entering the public record because Office staff will no longer be manually transcribing indexing information. The Office has previously determined that having remitters provide indexing information for recordations is permissible under the Copyright Act.15 The system will also require a digital scan of the document to be uploaded and for various certifications, discussed below, to be made via the electronic system. Lastly, the Office currently plans for online payment to be made through Pay.gov. Given the automated nature of the contemplated electronic system, the Office is evaluating whether or not to continue allowing remitters to pay through deposit accounts, which currently is a largely manual, offline process. The Office welcomes comment on this issue, including whether potential users of deposit accounts would be willing to pay a surcharge for the development and maintenance of an automated deposit account system. 13 Appropriate recordation-related fees will be evaluated and determined through a fee study at a later date closer to implementation of the electronic system. 14 See Brauneis Report at 88–96 (noting that stakeholders ‘‘generally reacted very positively to the proposal to have remitters submit catalog information’’). 15 See 79 FR at 55634–35 (concluding that ‘‘the Register may assign the task of indexing to another and issue implementing regulations; her duty is to ensure that indexes of records are prepared’’). PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 Paper Submissions. In addition to electronic submissions, the Office proposes, as the Brauneis Report recommended,16 retaining a paper submission process similar to the Office’s current process. The proposed amendment requires paper submissions to be accompanied by a cover sheet that will likely be similar to the current Form DCS. The cover sheet could, but need not, be used to make the various required certifications discussed below. Remitters would also continue to be permitted to provide electronic lists of certain indexing information about the works to which the document pertains. As under the Office’s current regulations, the electronic list will not be considered part of the recorded document, but will only be used for indexing purposes. The proposed amendment removes much of the current regulation’s details surrounding the formatting of electronic title lists, instead specifying that such lists must be prepared and submitted in the manner specified by the Office in instructions it will post on its Web site. This change will allow the Office to develop easier and more flexible instructions for remitters that can be updated and modified as needed without resorting to a rulemaking. The proposed rule also continues the current rule that the Office may reject improperly prepared electronic title lists. The Office, however, will no longer permit corrections of errors or omissions in electronic title lists (see ‘‘Parties Bear Consequences of Inaccuracies’’ below). The Office proposes continuing to provide return receipts for paper submissions when a remitter provides two copies of the cover sheet and a selfaddressed, postage-paid envelope. As before, this will simply confirm the Office’s receipt of the submission as of the indicated date, but not establish eligibility for, or the date of, recordation. Originals, Copies, and Actual Signatures. The Office proposes to continue to require, in accordance with section 205(a), that to record a document, remitters must submit either the original document ‘‘bear[ing] the actual signature of the person who executed it’’ or a ‘‘true copy of the original, signed document’’ accompanied by a ‘‘sworn or official certification.’’ An argument can be made, as the Brauneis Report pointed out, that even if a natively electronic document could be considered an ‘‘original document,’’ by submitting it to the Office over the internet through the 16 See E:\FR\FM\18MYP1.SGM Brauneis Report at 59–60. 18MYP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS Federal Register / Vol. 82, No. 95 / Thursday, May 18, 2017 / Proposed Rules new system, what the Office receives would nonetheless technically be a ‘‘copy’’ of the original, which would be left on the computer from which the submission was made.17 A similar argument might be made about electronically signed documents filed either through the paper or electronic submission process. Thus, to avoid any doubt about the sufficiency of a recordation on the basis of whether or not the submitted document is an original or a copy, the proposed amendment would consider any document either submitted electronically through the new system, or lacking a handwritten, wet signature (e.g., any document bearing an electronic signature) to be a ‘‘copy’’ within the meaning of section 205. In practice, this is unlikely to significantly affect remitters; the only consequence is that each such submission will need to be accompanied by a sworn or official certification. One of the more significant proposed changes from current practices concerns the definition of the statutory term ‘‘actual signature.’’ Currently, that term is undefined in the Office’s regulations, but in practice, the Office has required original documents to bear handwritten, wet signatures and copies of documents to reproduce such handwritten, wet signatures. Electronic signatures are not permitted. As the Brauneis Report recommends, the Office proposes to change that.18 In recent years, courts have found electronically signed transfers of copyright ownership to be valid under 17 U.S.C. 204, which requires that such transfers be ‘‘in writing and signed.’’ 19 These cases turned on the applicability of the Electronic Signatures in Global and National Commerce Act (‘‘E-Sign Act’’), enacted in 2000, which provides that ‘‘with respect to any transaction in or affecting interstate or foreign commerce. . . a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form.’’ 20 The E-Sign Act also defines ‘‘electronic signature’’ and does so broadly, as ‘‘an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by id. at 65. id. at 57, 60. 19 See, e.g., Metro. Reg’l Info. Sys. v. Am. Home Realty Network, Inc., 722 F.3d 591, 601–02 (4th Cir. 2013) (‘‘[A]n electronic agreement may effect a valid transfer of copyright interests under Section 204 of the Copyright Act.’’). 20 15 U.S.C. 7001(a)(1). a person with the intent to sign the record.’’ 21 For instance, in Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc., the U.S. Court of Appeals for the Fourth Circuit held that a subscriber who ‘‘clicks yes’’ in response to an electronic terms of use agreement prior to uploading copyrighted photographs to an online database signed a written transfer within the meaning of 17 U.S.C. 204(a).22 After determining that none of the E-Sign Act’s exceptions applied, the court concluded that ‘‘[t]o invalidate copyright transfer agreements solely because they were made electronically would thwart the clear congressional intent embodied in the E-Sign Act.’’ 23 Similarly, in Sisyphus Touring, Inc. v. TMZ Productions, Inc., the U.S. District Court for the Central District of California found that a valid transfer under section 204(a) had been effected through an email exchange.24 The ESign Act was important to the court’s decision that ‘‘the emails [were] sufficient to act as [the transferor’s] signature’’ and that clicking ‘‘send’’ was similar to clicking ‘‘yes’’ as in Metropolitan Regional Information Systems.25 Because they bore electronic signatures, neither of the documents at issue in those cases is currently recordable under the Office’s rules and practices. The Office believes it important that this change. The Office’s regulations and processes should be flexible enough to permit any document that may constitute a transfer under section 204 to be recordable under section 205. Thus, the Office proposes defining ‘‘actual signature’’ as any legally binding signature, including an electronic signature as defined by the ESign Act. Regardless of whether the ESign Act actually applies to other types of recordable documents, the Office views it as persuasive guidance as to how Congress would want the signature requirement to be interpreted in this context. The Government Paperwork Elimination Act is also persuasive, in that it directs executive agencies to provide ‘‘for the option of electronic maintenance, submission, or disclosure of information, when practicable as a substitute for paper’’ and ‘‘for the use and acceptance of electronic signatures, 17 See 18 See VerDate Sep<11>2014 12:41 May 17, 2017 Jkt 241001 21 Id. at 7006(5). F.3d at 601–02. 22773 when practicable.’’ 26 The Office agrees with the Brauneis Report’s assessment that this ‘‘Act expresses the intent of Congress to enable citizens to interact electronically with the federal government, and in particular to be able to use electronic signatures whenever signatures are required in documents submitted to the government.’’ 27 The Brauneis Report, however, raised concern over broadening the definition too far, noting that doing so could potentially include ‘‘acts that do not generate a trace that is easily remitted as ‘a signature’ on ‘a document.’ ’’ 28 As a result, the Brauneis Report recommended requiring that the signature be in a ‘‘ ‘discrete and identifiable form’ on the remitted document.’’ 29 The Office proposes resolving this concern another way. Rather than restrict the definition of signature, the proposed rule would require that where an actual signature is not a handwritten or typewritten name, such as when an individual clicks a button on a Web site or application to agree to terms of use, the remitter would be required to submit evidence demonstrating the existence of the signature. For example, the remitter could append a database entry or confirmation email to a copy of the terms showing that a particular user agreed to them by clicking ‘‘yes’’ on a particular date. While remitters may be confronted with more challenging scenarios, the Office is inclined to leave it to the remitter to decide how best to show the Office that a particular submitted document has been signed. The Office will then assess such evidence on a case-by-case basis to determine eligibility for recordation. Lastly, the Office notes that the proposed regulatory definition of ‘‘actual signature’’ is consistent with section 205 of the Copyright Act. Congress’s use of the word ‘‘actual’’ does not appear to do anything more than differentiate the signature on an original document from the reproduction of that signature on a copy of the document. The ‘‘or’’ in section 205(a) and the explanation in the Copyright Act’s legislative history indicate that either the original document with its ‘‘actual signature’’ can be submitted for recordation or a true copy that does not bear an ‘‘actual 22 722 23 Id. 24 208 F. Supp. 3d 1105, 1112–14, (C.D. Cal. 2016), appeal docketed, No. 16–56471 (9th Cir. Oct. 7, 2016). 25 Id. PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 26 See Public Law 105–277, tit. xvii, sec. 1704, 112 Stat. 2681, 2681–750 (1998). 27 See Brauneis Report at 63. 28 Id. at 66. 29 Id. E:\FR\FM\18MYP1.SGM 18MYP1 22774 Federal Register / Vol. 82, No. 95 / Thursday, May 18, 2017 / Proposed Rules jstallworth on DSK7TPTVN1PROD with PROPOSALS signature’’ but is of the ‘‘original, signed document’’ can be submitted instead.30 Certifications. Under the proposed amendment, remitters would be required to provide essentially two sets of certifications. First, the Office proposes that the remitter must personally certify that he or she has appropriate authority to submit the document for recordation and that the information submitted to the Office by the remitter is true, accurate, and complete to the best of the remitter’s knowledge. Unlike the other certifications, discussed below, which pertain to the actual document being submitted for recordation, these concern the remitter’s authority to make the recordation and the veracity of the indexing and other information provided as a part of the submission. For electronic submissions, it is envisioned that these certifications will be made through the new system by checking a box and/or electronically signing one’s name. For paper submissions, the remitter could make these certifications by signing, either electronically or by hand, the required cover sheet. Second, the proposed amendment would require certifications that the document conforms to the Office’s completeness, legibility, and redaction rules, discussed below. Where the submitted document is a copy, a sworn or official certification would also be required. Section 205(a) specifically requires this last certification, stating that a document may be recorded ‘‘if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document.’’ 31 The statute further explains that ‘‘[a] sworn or official certification may be submitted to the Copyright Office electronically, pursuant to regulations established by the Register of Copyrights.’’ 32 The proposed rule would not substantively alter the definition of ‘‘official certification,’’ but clarifies that it can be signed electronically whether submitted electronically or on paper. The proposed amendment would, however, simplify the definition of 30 See 17 U.S.C. 205(a) (stating that a document ‘‘may be recorded . . . if the document . . . bears the actual signature of the person who executed it, or if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document.’’) (emphasis added); H.R. Rep. No. 94–1476, at 128 (1976) (‘‘Any ‘document pertaining to a copyright’ may be recorded under subsection (a) if it ‘bears that actual signature of the person who executed it,’ or if it is appropriately certified as a true copy.’’); S. Rep. No. 94–473, at 112 (1975) (same). 31 17 U.S.C. 205(a). 32 Id. VerDate Sep<11>2014 12:41 May 17, 2017 Jkt 241001 ‘‘sworn certification,’’ as recommended by the Brauneis Report,33 in addition to making the same clarification regarding electronic signatures. Under the current definition, a sworn certification can be an affidavit under the official seal of any officer authorized to administer oaths within the United States, or if the original is located outside of the United States, under the official seal of any diplomatic or consular officer of the United States or of a person authorized to administer oaths whose authority is proved by the certificate of such an officer, or a statement in accordance with 28 U.S.C. 1746.34 The Office has rarely received certifications in the form of affidavits under official seal and is frequently asked questions by confused remitters regarding what can constitute a sworn certification. Thus, the Office believes it will be easier, simpler, and less likely to confuse remitters who may think this requirement is more burdensome than intended, to only permit certifications in the form of statements that comply with 28 U.S.C. 1746. That provision essentially states that wherever a law requires or permits a matter to be supported by a sworn certification, such matter can instead be supported by an unsworn certification if it is in writing, dated, signed, made under penalty of perjury, and in ‘‘substantially’’ the form prescribed by the statute.35 Consequently, the Office proposes that as part of any submission of a copy of a document for recordation, a certification be included along the lines of the following: I certify under penalty of perjury under the laws of the United States of America that the accompanying document being submitted to the U.S. Copyright Office for recordation is, to the best of my knowledge, a true and correct copy of the original, signed document. Adding that the certification is being made to the best of the certifier’s knowledge, should address concerns referenced in the Brauneis Report that in many cases the certifier may not have access to the original document and thus would not be in a position to definitively swear to the submitted copy being a true copy of the original, signed document.36 The changes to section 1746’s form language appear to be permissible, as the statute only requires that the certification be in 33 See Brauneis Report at 67–68. CFR 201.4(a)(3)(i). 35 28 U.S.C. 1746 (such form being, ‘‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)’’). 36 See Brauneis Report at 68–69. 34 37 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 ‘‘substantially’’ the prescribed form.37 Allowing the certification to be signed electronically appears to be permissible as well based on case law under 28 U.S.C 1746 38 and the language in 17 U.S.C. 205(a) that expressly permits sworn or official certifications to be submitted to the Office ‘‘electronically, pursuant to regulations established by the Register.’’ 39 The Office also proposes expanding the categories of people who can make such a certification to include not only one of the parties to the signed document and the authorized representative of such party, but also any person having an interest in a copyright to which the document pertains, as well as such person’s authorized representative. The Brauneis Report notes that there are many situations where no party to the document is available to sign the certification or authorize a representative to do so.40 Recognizing this, the amended language will alternatively permit others, such as successors in interest or third-party beneficiaries, to sign it or have their own representative do so on their behalf. The Office will likely require any authorized representative to specify who they represent and any non-party 37 See 28 U.S.C. 1746; see also Cobell v. Norton, 391 F.3d 251, 260 (D.C. Cir. 2004) (‘‘28 U.S.C. 1746 contemplate[s] as adequate certifications that are ‘substantially’ in the form of the language of their provisions. A declaration or certification that includes the disclaimer ‘to the best of [the declarant’s] knowledge, information or belief’ is sufficient under . . . the statute.’’); Dye v. Kopiec, No. 16 Civ. 2952 (LGS), 2016 U.S. Dist. LEXIS 175144, at *5 (S.D.N.Y. Dec. 16, 2016) (declaration including the phrase ‘‘to the best of my knowledge, information and belief’’ was a ‘‘slight variation . . . [from] the affirmation prescribed by 28 U.S.C. 1746 [and] is not sufficient to reject Defendant’s declaration’’). 38 See, e.g., U.S. v. Hyatt, No. 06–00260–WS, 2008 U.S. Dist. LEXIS 16253, at *6–7 (S.D. Ala. Mar. 3, 2008) (‘‘1746 do[es] not expressly require a signature by hand. . . . It appears that courts have routinely concluded that electronic signatures have the same effect as hand signatures unless court rules provide otherwise.’’); W. Watersheds Project v. BLM, 552 F. Supp. 2d 1113, 1123 (D. Nev. 2008) (declaration ‘‘contain[ing] an indication of an electronic signature’’ permitted under section 1746); Tishcon Corp. v. Soundview Commc’ns, Inc., No. 1:04–CV–524–JEC, 2006 U.S. Dist. LEXIS 97309, at *10–12 (N.D. Ga. Feb. 14, 2006) (declaration with electronic signature permitted under section 1746, as it ‘‘evinced [the declarant’s] intention to submit sworn declarations’’) 39 See 17 U.S.C. 205(a). This language was added to section 205(a) in 2010 to ‘‘make [the copyright system and] the Office’s operations more efficient,’’ ‘‘facilitate [the Office’s] transition to digital files and record keeping,’’ and ‘‘make it easier for filers to submit documents electronically.’’ 156 Cong. Rec. S6594 (daily ed. Aug. 2, 2010) (statement of Sen. Leahy, Chairman, S. Comm. on the Judiciary); see Copyright Cleanup, Clarification, and Corrections Act of 2010, Public Law 111–295, 124 Stat. 3180 (2010). 40 See Brauneis Report at 67–68. E:\FR\FM\18MYP1.SGM 18MYP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS Federal Register / Vol. 82, No. 95 / Thursday, May 18, 2017 / Proposed Rules to briefly describe the nature of his or her relevant copyright interest. It is currently envisioned that whether a submission is made electronically or on paper, the remitter can, but need not, be the one to make this second set of required certifications (concerning completeness, legibility, redactions, and being a true copy of the original document). The Office understands that the actual remitter—the person logging into the electronic system or filling out the document coversheet—may be a paralegal or other support staff member, and may not necessarily be in a position to make these certifications. As a result, while the electronic system and paper cover sheet will likely have a place where the remitter can make these certifications, in order to provide greater filing flexibility, the Office also intends to permit the remitter to instead attach a separate certifying statement made by another individual. The Office will likely provide a standard form certification and require that it be used in such situations. When making a paper submission, the form would be included along with the cover sheet and document. When submitting electronically, the remitter would be able to upload a digital scan of the signed certification form. Completeness and Legibility. As under current regulations, the Office will continue to require documents submitted for recordation to be complete and legible. The Office proposes simplifying the completeness requirement to only mandate that the document be complete by its terms, and include all referenced schedules, appendices, exhibits, addenda, or other material essential to understanding the copyright-related aspects of the document. This is a change from current practice, where the Office requires people to submit documents including all schedules, or provide an explanation for why such material cannot be provided. In contrast, under the proposed amendments, if, for example, a document has several schedules, but only one has any relevance to the copyright-related terms of the agreement, the document would be deemed complete so long as that schedule is included; the other schedules can be omitted. The Office sees no reason to burden remitters with having to submit and Office staff with having to review what can often be a significant volume of material completely unrelated to the copyright terms of the document. Redactions. Currently, the Office permits documents submitted for recordation to contain redactions as an interim practice, not codified in the VerDate Sep<11>2014 12:41 May 17, 2017 Jkt 241001 Office’s regulations.41 The proposed rule codifies and amends this policy. Most significantly, the proposed rule would limit redactions to certain sensitive information, including financial, trade secret, and personally identifiable information. This approach largely comports with the Brauneis Report, which suggested that ‘‘[a] redaction regulation formulated as a list of specific redaction categories that are allowed, rather than as a general prohibition on redactions that obscure the essential terms of a transaction, may be easier for remitters to follow.’’ 42 Additionally, in response to the Brauneis Report’s fear that, on the other hand, a specific list of permitted redaction categories may deter recordation in certain circumstances,43 the Office intends to allow remitters to request and justify in writing the need to redact any other information, which the Office may permit in its discretion. It is envisioned that if the remitter is submitting the document electronically, such requests could made directly through the new system. The Office does not, however, plan to build redaction tools into the new system, so any redactions would need to be made prior to uploading the document. As under the Office’s current interim guidance, blank or blocked-out portions of the document will need to be labeled ‘‘redacted’’ or an equivalent and all portions of the document required by the simplified completeness requirement must be included, even if an entire page is redacted. The proposed amendment also adds that upon request, for review purposes, the remitter may be required to supply the Office with an unredacted copy of the document or additional information about the redactions. English Language Requirement. The Office proposes to continue accepting and recording non-English language documents only if accompanied by an English translation signed by the individual making the translation. The Office further proposes to extend the translation requirement to any indexing information provided by the remitter. Whether a document is submitted via the paper or electronic process, a translation is necessary for Office staff to review the document and confirm its eligibility for recordation. Additionally, when submitted pursuant to the paper process, the translation is also needed for staff to index the document. 41 See 70 FR 44049, 44051 (Aug. 1, 2005); U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 2309.9(E) (3d ed. 2014). 42 See Brauneis Report at 81. 43 See id. PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 22775 For non-English language documents submitted electronically through the new system, it is anticipated that the system will be able to accommodate the remitter providing indexing information in the native language of the document, rather than in English. But, while the Office proposes to accept non-English indexing information into the electronic system, it still needs a translation of that information for review purposes. The Office also believes it in the public’s best interest to continue requiring English translations and to make those translations publicly available so that those who may have an interest in a particular copyrighted work, but who may not speak the native language of a pertinent document, can still learn of the document’s existence and understand its basic meaning. The Office also notes that this requirement is in accord with the U.S. Patent and Trademark Office’s recordation regulations.44 As the Office proposes to continue making all translations available for public inspection, as done currently, it also proposes that they be subject to the same redaction rules applicable to the underlying documents. Indexed Information. Though the Office is disinclined to list specific categories of indexing information in its regulations, the Office seeks input on what indexing information the Office should ask remitters to provide. For example, document type, parties, party addresses, third-party beneficiaries, date of execution, effective date, title information (including copyright owner and author identity, alternate titles, related registration numbers, and standard identifiers for both works and authors), and related recordation numbers are among the information being contemplated. Parties Bear Consequences of Inaccuracies. The Office intends to continue its current practice of relying on the information provided by remitters for indexing purposes and requiring parties in interest to bear the consequences of any inaccuracies in such information. The Office has previously determined that ‘‘for the rule to result in the efficient cataloging of documents submitted for recordation, the burden for creating accurate electronic title lists, and thus the legal consequences for failing to do so, must be on the remitter.’’ 45 The proposed 44 See 37 CFR 3.26 (‘‘The [Patent and Trademark] Office will accept and record non-English language documents only if accompanied by an English translation signed by the individual making the translation.’’). 45 79 FR at 55634–35 (also discussing Office’s authority to do so); accord Brauneis Report at 93– E:\FR\FM\18MYP1.SGM Continued 18MYP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS 22776 Federal Register / Vol. 82, No. 95 / Thursday, May 18, 2017 / Proposed Rules rule carries this conclusion to all remitter-provided information, including not just electronic title lists, but also the cover sheet accompanying paper submissions and any information provided through the new electronic recordation system. The proposed amendment also clarifies that it is not necessarily always the remitter who bears the consequences of inaccuracies. More accurately, it is the parties to the remitted document, including any successors in interest or third-party beneficiaries who bear the consequences, if any, of any inaccuracies in the information provided to the Office by the remitter. The Office is inclined to also continue its current general practice of not permitting corrections to be made for any such inaccuracies after the document is recorded. Instead, as now, the remitter would need to resubmit the document for recordation with corrected information and it will be treated as any other first-time-submitted document, though the Office’s catalog record for both the original and corrected recordations will likely be linked to make clear that an updated filing was made. For purposes of uniformity and efficiency, the Office is inclined to discontinue permitting corrections of inaccurate electronic title lists that accompany paper filings. Such errors should be treated the same as if the error was made on the cover sheet or through the new system. With the introduction of the new system and what will likely be a significant reduction in paper filings, the Office sees no reason to continue special treatment of electronic title lists going forward. To have an efficient recordation system with an affordable fee, it is simply impractical for Office staff to review all remitterprovided indexing information, which also means that it would be very difficult to review ‘‘corrected’’ submissions against the original to confirm that the remitter is not attempting to do something improper under the guise of a correction. Recordation Certificate and Returning of Document. As before, once recorded, the document will be returned to the remitter with a certificate of recordation, as required by section 205(b). Currently, all recorded documents are digitally imaged and electronically stamped with the document’s official recordation number and page numbers. This stamped copy is then printed and sent to the remitter with a paper recordation certificate. Where an original document 99 (‘‘[T]his report recommends burdening remitters . . . with the responsibility to provide accurate cataloging information . . . .’’). VerDate Sep<11>2014 12:41 May 17, 2017 Jkt 241001 is submitted, it is also returned. The Office intends to continue this process for paper submissions. For electronic submissions, as recommended by the Brauneis Report, the Office intends to discontinue printing and mailing certificates of recordation and stamped copies of recorded documents once the new system is launched.46 Instead, the Office plans to email the certificate and stamped copy of the document to the remitter and make them available to the remitter electronically through his or her system account. Doing so will be faster and less expensive than continuing to manually print and mail them which will help bring down the overall recordation filing fee. The Office intends to still make paper certificates and print outs of the stamped copy of a document available to electronic filers wanting one for an additional fee. Public Availability of Recorded Documents. Currently, while indexed information about recorded documents is available to the public through the Office’s online catalog, the documents themselves are not. They are only available for in-person inspection at the Office’s reading room in Washington, DC or by making a search and retrieval request. The Office plans, as recommended by the Brauneis Report,47 to update this practice going forward by making all documents recorded after the launch of the new system available on the internet, regardless of whether the document was submitted through the new system or via the paper process described above. The Office sees no reason why someone should be required to travel to Washington, DC or to make an expensive search and retrieval request to view these records. Privacy, confidentiality, and other related concerns with making these documents available online should be allayed by the proposed redaction rules discussed above. In the future, the Office intends to explore also making documents recorded prior to the system’s introduction available online, and will issue an NPRM on the subject at a later date to address issues such as redaction. Constructive Notice. The proposed amendment makes clear that for constructive notice under 17 U.S.C. 205(c) to attach with regard to works to which a recorded document pertains, the document must include or be accompanied by the title and copyright 46 See Brauneis Report at 108–09 (‘‘Stakeholders were uniformly in favor of receiving recorded documents and certificates electronically rather than on paper.’’). 47 See id. at 76–83. PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 registration number of each such work.48 B. Notices of Termination The proposed amendment to 37 CFR 201.10(f) concerning submission of notices of termination to the Copyright Office for recordation largely tracks the proposed amendment to 37 CFR 201.4 discussed above, to the extent applicable. The Office notes that it is not proposing any changes to the form, content, or manner of service of notices of termination at this time; only how they are submitted to the Office for recordation. As with documents submitted for recordation under section 205, remitters will be able to submit notices of termination for recordation either electronically through the new system or in paper hardcopy. To record a notice, it will need to satisfy the Office’s requirements, be submitted in accordance with the Office’s rules and instructions, and be accompanied by the appropriate filing fee. Unlike section 205 documents, for which recordation is optional, notices of termination must be recorded with the Office ‘‘as a condition to its taking effect.’’ 49 As before, the date of recordation will be the date when all of the required elements are received by the Office, and the Office may reject any notice submitted for recordation that fails to comply with the Office’s rules and instructions. Submission Requirements. The proposed requirements governing what must be submitted to the Office for recordation remain essentially unchanged. Remitters would be required to provide a complete and legible copy of the signed notice of termination as served on the grantee or successor in title. If separate copies of the same notice were served on more than one grantee or successor, only one copy would need to be submitted to the Office for recordation. The proposed amendment clarifies some ambiguity about the form of the signature appearing on the notice. The manner by which notices are to be signed is governed by paragraph (c) of 37 CFR 201.10, not paragraph (f), and the proposed rule makes clear that however the notice is signed, what must be submitted to the Office for recordation 48 See H.R. Rep. No. 94–1476, at 128 (1976) (‘‘[S]ubsection (c) makes clear that the recorded document will give constructive notice of its contents only if two conditions are met: (1) The document or attached material specifically identifies the work to which it pertains so that a reasonable search under the title or registration number would reveal it, and (2) registration has been made for the work.’’); S. Rep. No. 94–473, at 112 (1975) (same). 49 17 U.S.C. 203(a)(4)(A), 304(c)(4)(A), 304(d)(1). E:\FR\FM\18MYP1.SGM 18MYP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS Federal Register / Vol. 82, No. 95 / Thursday, May 18, 2017 / Proposed Rules is a copy of the as-served notice, including the reproduced image of the signature as it appeared on that served notice. As now, the proposed rule would also require remitters to submit a statement setting forth the date on which the notice was served and the manner of service, unless that information is already contained within the notice itself. Also as under the current rule, the proposed amendment makes clear that where service was made by first class mail, the date of service is the day the notice was deposited with the post office. The Office’s timeliness rule also would remain unchanged. The Office will continue to refuse notices if they are untimely. Such scenarios where a notice would be deemed untimely include when the effective date of termination does not fall within the five-year period described in section 203(a)(3) or section 304(c)(3), as applicable, the documents submitted indicate that the notice was served less than two or more than ten years before the effective date of termination, and the date of recordation is after the effective date of termination. Lastly, the proposed rule would add a requirement for various certifications. The remitter would have to personally certify that he or she has appropriate authority to submit the notice for recordation and that all information submitted to the Office by the remitter is true, accurate, and complete to the best of the remitter’s knowledge. The proposed amendment would also require submission of certifications, which need not be made by the remitter, that the copy of the notice being submitted is a true, correct, complete, and legible copy of the as-served signed notice. Procedurally, the submission of these certifications would work the same way as described above for the certifications relevant to section 205 recordations. Submission Procedure. Electronic submission through the to-be-developed system would work basically the same as for section 205 documents discussed above, but will be tailored specifically to the needs of notices of termination. As with section 205 recordations, the new system will essentially require the remitter to provide four things: The notice to be recorded, indexing information about the notice (i.e., information necessary for the Office’s public catalog), assent to various certifying statements, and payment of the applicable fee. It is intended that the new system will walk remitters through the process of providing all pertinent indexing information, helping to facilitate along the way that the notice VerDate Sep<11>2014 12:41 May 17, 2017 Jkt 241001 is being made pursuant to the correct statutory provision and providing guidance as to applicable time limits, among other things. The Office intends to retain a paper submission process for notices of termination that will largely track the Office’s current process, but will add the requirement of a cover sheet which will serve the same function as the cover sheet required for section 205 submissions discussed above. The Office also proposes offering return receipts for notices of termination upon the same terms offered for section 205 submissions. Parties Bear Consequences of Inaccuracies. As with section 205 documents, and for the same reasons discussed above, the Office will rely on the information provided by remitters for indexing purposes and require parties in interest to bear the consequences of any inaccuracies in such information. Similarly, the Office is also inclined in the notice of termination context to continue its current general practice of not permitting corrections to be made for any such inaccuracies after the notice is recorded. Instead, as now, the remitter would need to resubmit the notice for recordation with corrected information and it will be treated as any other firsttime-submitted notice, though the Office’s catalog record for both the original and corrected recordations will likely be linked to make clear that an updated filing was made. Recordation Certificate and Returning of Notice. As with section 205 documents, and for the same reasons discussed above, for electronic submissions, the Office proposes to discontinue printing and mailing certificates of recordation and stamped copies of recorded notices of termination once the new system is launched. Instead, the Office plans to email the certificate and stamped copy of the notice to the remitter and make them available to the remitter electronically through his or her system account. The Office intends to still make paper certificates and print outs of the stamped copy of a notice of termination available to electronic filers wanting one for an additional fee. Public Availability of Recorded Notices. The Office is disinclined to make notices of termination available online to the public, as the Office believes that all pertinent information contained in a notice of termination is contained in the indexed information made part of the Office’s online public catalog. This is in contrast to documents recorded under section 205 where relevant information may be contained in the document itself, but not the PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 22777 catalog record. However, the Office invites comment on whether posting scans of the actual notices online would be useful and whether there are any implications involved in doing so, such as a need to permit redactions. The Office notes that the actual notices are currently available to the public for inperson inspection in its reading room or through a search and retrieval request. List of Subjects in 37 CFR Part 201 Copyright, General provisions. Proposed Regulations For the reasons set forth in the preamble, the Copyright Office proposes amending 37 CFR part 201 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 § 201.4 to read as follows: § 201.4 Recordation of transfers and other documents pertaining to copyright. (a) General. This section prescribes conditions for the recordation of transfers of copyright ownership and other documents pertaining to a copyright under 17 U.S.C. 205. A document is eligible for recordation under this section if it meets the requirements of paragraph (d), if it is submitted in accordance with the submission procedure described in paragraph (e), of this section, and if it is accompanied by the fee specified in 37 CFR 201.3(c). The date of recordation is the date when all of the elements required for recordation, including a proper document, fee, and any additional required information, are received in the Copyright Office. After recordation the document is returned to the sender with a certificate of recordation. The Office may reject any document submitted for recordation that fails to comply with 17 U.S.C. 205 or the requirements of this section. (b) Documents not recordable under this section. This section does not govern the filing or recordation of the following documents: (1) Certain contracts entered into by cable systems located outside of the 48 contiguous States (17 U.S.C. 111(e); see 37 CFR 201.12); (2) Notices of identity and signal carriage complement, and statements of account of cable systems and satellite carriers and for digital audio recording devices and media (17 U.S.C. 111(d), 119(b), and 1003(c); see 37 CFR 201.11, 201.17, 201.28); (3) Notices of intention to obtain compulsory license to make and E:\FR\FM\18MYP1.SGM 18MYP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS 22778 Federal Register / Vol. 82, No. 95 / Thursday, May 18, 2017 / Proposed Rules distribute phonorecords of nondramatic musical works (17 U.S.C. 115(b); see 37 CFR 201.18); (4) Notices of termination (17 U.S.C. 203, 304(c) and (d); see 37 CFR 201.10); (5) Statements regarding the identity of authors of anonymous and pseudonymous works, and statements relating to the death of authors (17 U.S.C. 302); (6) Documents pertaining to computer shareware and donation of public domain software (Pub. L. 101–650, sec. 805; see 37 CFR 201.26); (7) Notifications from the clerks of the courts of the United States concerning actions brought under title 17, United States Code (17 U.S.C. 508); (8) Notices to libraries and archives of normal commercial exploitation or availability at reasonable prices (17 U.S.C. 108(h)(2)(C); see 37 CFR 201.39); (9) Submission of Visual Arts Registry Statements (17 U.S.C. 113; see 37 CFR 201.25); (10) Notices and correction notices of intent to enforce restored copyrights (17 U.S.C. 104A(e); see 37 CFR 201.33, 201.34); and (11) Designations of agents to receive notifications of claimed infringement (17 U.S.C. 512(c)(2); see 37 CFR 201.38). (c) Definitions. For purposes of this section: (1) A transfer of copyright ownership has the meaning set forth in 17 U.S.C. 101. (2) A document pertaining to a copyright is any document that has a direct or indirect relationship to the existence, scope, duration, or identification of a copyright, or to the ownership, division, allocation, licensing, or exercise of rights under a copyright. That relationship may be past, present, future, or potential. (3) An actual signature is any legally binding signature, including an electronic signature as defined in 15 U.S.C. 7006. (4) A sworn certification is a statement made in accordance with 28 U.S.C. 1746 that the copy of the document submitted for recordation is, to the best of the certifier’s knowledge, a true copy of the original, signed document. A sworn certification must be signed by at least one of the parties to the signed document, any person having an interest in a copyright to which the document pertains, or the authorized representative of such person or party. A sworn certification may be signed electronically whether submitted electronically or on paper. (5) An official certification is a certification, by the appropriate governmental official, that the original of the document is on file in a public VerDate Sep<11>2014 12:41 May 17, 2017 Jkt 241001 office and that the copy of the document submitted for recordation is a true copy of the original. An official certification may be signed electronically whether submitted electronically or on paper. (d) Document requirements. (1) Original or certified copy. The remitter must submit either the original document that bears the actual signatures of the persons who executed it, or a copy of the original, signed document accompanied by a sworn certification or an official certification. All documents submitted via the electronic submission process in paragraph (e)(1) of this section, and all documents lacking a handwritten, wet signature (including all documents bearing an electronic signature) submitted through either the paper or electronic submission process, are considered to be copies of the original, signed document, and must be accompanied by a sworn certification or an official certification. Where an actual signature is not a handwritten or typewritten name, such as when an individual clicks a button on a Web site or application to agree to terms of use, the remitter must submit documentation evidencing the existence of the signature, which the Office will assess on a case-by-case basis to determine eligibility for recordation. For example, the remitter could append a database entry or confirmation email showing that a particular user agreed to the terms of use by clicking ‘‘yes’’ on a particular date. (2) Completeness. Each document submitted for recordation must be, and certified to be, complete by its terms, and include all referenced schedules, appendices, exhibits, addenda, or other material essential to understanding the copyright-related aspects of the document. (3) Legibility. Each document submitted for recordation must be, and certified to be, legible. (4) Redactions. The Office will accept and make available for public inspection redacted documents provided— (i) The redactions are limited to financial terms, trade secret information, social security or taxpayeridentification numbers, and financial account numbers, or the need for any redactions is justified to the Office in writing and approved by the Office; (ii) The blank or blocked-out portions of the document are labeled ‘‘redacted’’ or the equivalent; (iii) Each portion of the document required by paragraph (d)(2) of this section is included; and (iv) Upon request, information regarding any redactions and/or an PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 unredacted version of the document is provided to the Office for review. (5) English language requirement. The Office will accept and record nonEnglish language documents and indexing information only if accompanied by an English translation signed by the individual making the translation. All translations will be made available for public inspection and may be redacted in accordance with paragraph (d)(4) of this section. (6) Titles of works and registration numbers. With regard to a work to which a document pertains, to provide constructive notice of the facts stated in the document under 17 U.S.C. 205(c), the document must include or be accompanied by the title and copyright registration number of such work. Documents that do not provide such information will still be recorded by the Office, but will not provide such constructive notice with regard to such work. (e) Submission procedure. (1) Electronic submission. The Copyright Office has established an electronic system for submission of documents for recordation, available through the Copyright Office’s Web site. Remitters must follow all instructions provided by the Office for use of that system, including by providing all indexing information requested by the Copyright Office. A remitter using the electronic system must upload an electronic copy of the document in the format requested by the system, provide all of the information requested by the system, and use the system to pay the required fee. Any document submitted for recordation through the electronic system must be accompanied by a certification, which must be made through the system, stating that the uploaded copy of the document is a true, correct, complete, and legible copy of the original, and if redacted, is redacted in accordance with paragraph (d)(4) of this section. (2) Paper submission. (i) Process. A document may be submitted for recordation by sending it to the appropriate address in 37 CFR 201.1(b) or to such other address as the Office may specify, accompanied by a cover sheet, the proper fee, and, if applicable, any electronic title list. Absent special arrangement with the Office, the Office will not process the submission unless all of the items necessary for processing are received together. (ii) Cover sheet required. Paper submission of a document must include a completed Recordation Document Cover Sheet (Form DCS), available on the Copyright Office Web site. Form E:\FR\FM\18MYP1.SGM 18MYP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS Federal Register / Vol. 82, No. 95 / Thursday, May 18, 2017 / Proposed Rules DCS may be used to provide a sworn certification, if appropriate, and to certify that the submitted document is complete, legible, and if redacted, redacted in accordance with paragraph (d)(4) of this section. (iii) Electronic title list. In addition to identifying the works to which the document pertains in the paper submission, the remitting party may also submit an electronic list setting forth each such work. The electronic list will not be considered part of the recorded document, but will only be used by the Office for indexing purposes. Absent special arrangement with the Office, the electronic list must be included in the same package as the paper document to be recorded. The electronic list must be prepared and submitted to the Office in the manner specified by the Copyright Office in instructions it posts on its Web site. The Office may reject any document submitted for recordation that includes an improperly prepared electronic title list. (iv) Return receipt. For paper submissions, if a remitter includes two copies of a properly completed Form DCS indicating that a return receipt is requested, as well as a self-addressed, postage-paid envelope, the remitter will receive a date-stamped return receipt acknowledging the Copyright Office’s receipt of the enclosed submission. The completed copies of Form DCS and the self-addressed, postage-paid envelope must be included in the same package as the submitted document. A return receipt confirms the Office’s receipt of the submission as of the date indicated, but does not establish eligibility for, or the date of, recordation. (3) Remitter certification. Whether making an electronic or paper submission, the remitter must certify that he or she has appropriate authority to submit the document for recordation and that all information submitted to the Office by the remitter is true, accurate, and complete to the best of the remitter’s knowledge. (f) Parties to bear consequences of inaccuracies. For purposes of indexing recorded documents in the Copyright Office’s public catalog, the Office will rely on the information provided by the remitter via either the electronic recordation system or Form DCS (along with the accompanying electronic title list, if provided). The parties to the document remitted, including any successors in interest or third-party beneficiaries, will bear the consequences, if any, of any inaccuracies in the information the remitter has provided. VerDate Sep<11>2014 12:41 May 17, 2017 Jkt 241001 (g) Public availability of recorded documents. Documents accepted for recordation after [EFFECTIVE DATE OF RULE] will be posted publicly on the internet as submitted, including with any redactions made by the remitter. ■ 3. Revise § 201.10(f) to read as follows: § 201.10 Notices of termination of transfers and licenses. * * * * * (f) Recordation. A copy of a notice of termination shall be recorded in the Copyright Office as required by 17 U.S.C. 203(a)(4)(A), 17 U.S.C. 304(c)(4)(A), or 17 U.S.C. 304(d)(1) if it meets the requirements of paragraph (f)(1), is submitted in compliance with paragraph (f)(2) of this section, and is accompanied by the fee prescribed by 37 CFR 201.3(c). The Office may reject any notice submitted for recordation that fails to comply with 17 U.S.C. 203(a), 17 U.S.C. 304(c), 17 U.S.C. 304(d), or the requirements of this section. (1) Requirements. The following requirements must be met before a copy of a notice of termination may be recorded in the Copyright Office. (i) What must be submitted. (A) Copy of notice of termination. A copy of a notice of termination submitted for recordation must be, and certified to be, a complete and legible copy of the signed notice of termination as served. Where separate copies of the same notice were served on more than one grantee or successor in title, only one copy need be submitted for recordation. (B) Statement of service. The copy submitted for recordation must be accompanied by a statement setting forth the date on which the notice was served and the manner of service, unless such information is contained in the notice. In instances where service is made by first class mail, the date of service shall be the day the notice of termination was deposited with the United States Postal Service. (ii) Timeliness. (A) The Copyright Office will 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 effective date of termination does not fall within the five-year period described in section 203(a)(3) or section 304(c)(3), as applicable, of title 17, United States Code; the documents submitted indicate that the notice of termination was served less than two or more than ten years before the effective date of PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 22779 termination; or the date of recordation is after the effective date of termination. (B) If a notice of termination is untimely, the Office will offer to record the document as a ‘‘document pertaining to copyright’’ pursuant to 37 CFR 201.4, but the Office will not index the document as a notice of termination. (C) In any case where an author agreed, prior to January 1, 1978, to a grant of a transfer or license of rights in a work that was not created until on or after January 1, 1978, a notice of termination of a grant under section 203 of title 17 may be recorded if it recites, as the date of execution, the date on which the work was created. (2) Submission procedure. (i) Electronic submission. The Copyright Office has established an electronic system for submission of notices of termination for recordation, available through the Copyright Office’s Web site. Remitters must follow all instructions provided by the Office for use of that system, including by providing all indexing information requested by the Copyright Office. A remitter using the electronic system must upload an electronic copy of the notice of termination in the format requested by the system, provide all of the information requested by the system, and use the system to complete the statement of service required under paragraph (f)(1)(i)(B) of this section and to pay the required fee. Any notice submitted for recordation through the electronic system must be accompanied by a certification, which must be made through the system, stating that the uploaded copy of the notice of termination is a true, correct, complete, and legible copy of the as-served signed notice. (ii) Paper submission. (A) Process. A paper copy of a notice of termination may be submitted for recordation by sending it to the appropriate address in 37 CFR 201.1(c) or to such other address as the Office may specify, accompanied by a cover sheet, the statement of service, and the proper fee. (B) Cover sheet required. Paper submission of a copy of a notice of termination must be accompanied by a completed Recordation Notice of Termination Cover Sheet (Form TCS), available on the Copyright Office Web site. Form TCS may be used to provide the statement of service and to certify that the submitted copy of the notice is a true, correct, complete, and legible copy of the as-served signed notice. (C) Return receipt. For paper submissions, if a remitter includes two copies of a properly completed Form TCS indicating that a return receipt is requested, as well as a self-addressed, E:\FR\FM\18MYP1.SGM 18MYP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS 22780 Federal Register / Vol. 82, No. 95 / Thursday, May 18, 2017 / Proposed Rules postage-paid envelope, the remitter will receive a date-stamped return receipt acknowledging the Copyright Office’s receipt of the enclosed submission. The completed copies of Form TCS and the self-addressed, postage-paid envelope must be included in the same package as the submitted notice. A return receipt confirms the Office’s receipt of the submission as of the date indicated, but does not establish eligibility for, or the date of, recordation. (iii) Remitter certification. Whether making an electronic or paper submission, the remitter must certify that he or she has appropriate authority to submit the notice for recordation and that all information submitted to the Office by the remitter is true, accurate, and complete to the best of the remitter’s knowledge. (3) Date of recordation. The date of recordation is the date when all of the elements required for recordation, including the prescribed fee and, if required, the statement of service referred to in paragraph (f)(2)(ii) of this section, have been received in the Copyright Office. After recordation, the notice, including any accompanying statement, is returned to the sender with a certificate of recordation. (4) Effect of recordation. The fact that the Office has recorded the notice does not mean that it is otherwise sufficient under the law. Recordation of a notice of termination by the Copyright Office is without prejudice to any party claiming that the legal and formal requirements for effectuating termination (including service of the notice of termination) have not been met, including before a court of competent jurisdiction. (5) Parties to bear consequences of inaccuracies. For purposes of indexing recorded notices in the Copyright Office’s public catalog, the Office will rely on the information provided by the remitter via either the electronic recordation system or Form TCS (along with any accompanying statement of service, if provided). The grantors and grantees associated with the notice of termination, including any successors in interest, will bear the consequences, if any, of any inaccuracies in the information the remitter has provided. Dated: May 10, 2017. Sarang V. Damle, General Counsel and Associate Register of Copyrights. [FR Doc. 2017–09810 Filed 5–17–17; 8:45 am] BILLING CODE 1410–30–P VerDate Sep<11>2014 12:41 May 17, 2017 Jkt 241001 FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 20 [GN Docket No. 13–111; FCC 17–25] Promoting Technological Solutions To Combat Contraband Wireless Device Use in Correctional Facilities Federal Communications Commission. ACTION: Proposed rule. AGENCY: In this document, the Federal Communications Commission seeks additional comment on a broad range of steps the Commission can take to help eliminate the problem of contraband wireless devices in correctional facilities. In particular, the Commission proposes a process for wireless providers to disable contraband wireless devices once they have been identified. The Commission seeks comment on additional methods and technologies that might prove successful in combating contraband device use in correctional facilities, and on various other proposals related to the authorization process for contraband interdiction systems and the deployment of these systems. DATES: Interested parties may file comments on or before June 19, 2017, and reply comments on or before July 17, 2017. ADDRESSES: You may submit comments, identified by GN Docket No. 13–111, by any of the following methods: D Electronic Filers: Comments may be filed electronically using the Internet by accessing the Commission’s Electronic Comment Filing System (ECFS): http:// fjallfoss.fcc.gov/ecfs2/. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). D Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. Generally if more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Commenters are only required to file copies in GN Docket No. 13–111. D Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission. D All hand-delivered or messengerdelivered paper filings for the Commission’s Secretary must be SUMMARY: PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 delivered to FCC Headquarters at 445 12th St. SW., Room TW–A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. D Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. D U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554. People with Disabilities: To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202–418–0530 (voice), 202– 418–0432 (TTY). FOR FURTHER INFORMATION CONTACT: Melissa Conway, Melissa.Conway@ fcc.gov, of the Wireless Telecommunications Bureau, Mobility Division, (202) 418–2887. For additional information concerning the PRA information collection requirements contained in this document, contact Cathy Williams at (202) 418–2918 or send an email to PRA@fcc.gov. SUPPLEMENTARY INFORMATION: This is a summary of the Commission’s Further Notice of Proposed Rulemaking (FNPRM) in GN Docket No. 13–111, FCC 17–25, released on March 24, 2017. The complete text of the FNPRM is available for viewing via the Commission’s ECFS Web site by entering the docket number, GN Docket No. 13–111. The complete text of the FNPRM is also available for public inspection and copying from 8:00 a.m. to 4:30 p.m. Eastern Time (ET) Monday through Thursday or from 8:00 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW., Room CY–B402, Washington, DC 20554, telephone 202– 488–5300, fax 202–488–5563. This proceeding shall continue to be treated as a ‘‘permit-but-disclose’’ proceeding in accordance with the Commission’s ex parte rules (47 CFR 1.1200 et seq.). Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons E:\FR\FM\18MYP1.SGM 18MYP1

Agencies

[Federal Register Volume 82, Number 95 (Thursday, May 18, 2017)]
[Proposed Rules]
[Pages 22771-22780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09810]


=======================================================================
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LIBRARY OF CONGRESS

 Copyright Office

37 CFR Part 201

[Docket No. 2017-7]


Modernizing Copyright Recordation

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The United States Copyright Office is proposing to amend its 
regulations governing recordation of transfers of copyright ownership, 
notices of termination, and other documents pertaining to a copyright. 
These amendments are being proposed in conjunction with the anticipated 
commencement of development effort for a modernized electronic 
recordation system.

DATES: Written comments must be received no later than 11:59 p.m. 
Eastern Time on July 17, 2017.

ADDRESSES: For reasons of government efficiency, the Copyright Office 
is using the regulations.gov system for the submission and posting of 
public comments in this proceeding. All comments are therefore to be 
submitted electronically through regulations.gov. Specific instructions 
for submitting comments are available on the Copyright Office Web site 
at https://www.copyright.gov/rulemaking/recordation-modernization. If 
electronic submission of comments is not feasible due to lack of access 
to a computer and/or the internet, please contact the Office using the 
contact information below for special instructions.

FOR FURTHER INFORMATION CONTACT: Sarang V. Damle, General Counsel and 
Associate Register of Copyrights, by email at sdam@loc.gov, or Jason E. 
Sloan, Attorney-Advisor, by email at jslo@loc.gov. Each can be 
contacted by telephone by calling (202) 707-8350.

SUPPLEMENTARY INFORMATION: 

I. Background

    Since 1870, the U.S. Copyright Office has recorded documents 
pertaining to works under copyright, such as assignments, licenses, and 
grants of security interests. Relevant here are the three primary types 
of documents submitted to the Copyright Office for recordation: 
Transfers of copyright ownership,\1\ other documents pertaining to a 
copyright,\2\ and notices of termination.\3\ Pursuant to 17 U.S.C. 
205(a), ``[a]ny transfer of copyright ownership or other document 
pertaining to a copyright may be recorded in the Copyright Office if'' 
certain conditions are met.\4\ Under the Copyright Act's notice of 
termination provisions in sections 203(a)(4) and 304(c)(4), ``[a] copy 
of the notice shall be recorded in the Copyright Office before the 
effective date of termination, as a condition to its taking effect,'' 
and such ``notice shall comply, in form, content, and manner of 
service, with requirements that the Register of Copyrights shall 
prescribe by regulation.'' \5\ These provisions also apply to section 
304(d)(1), another termination provision, which incorporates section 
304(c)(4) by reference.\6\ More broadly, section 702 of the Act 
authorizes the Register of Copyrights to ``establish regulations . . . 
for the administration of the functions and duties made the 
responsibility of the Register under [title 17],'' and section 705(a) 
requires that the Register ``ensure that records of . . . recordations 
. . . are maintained, and that indexes of such records are prepared.'' 
\7\
---------------------------------------------------------------------------

    \1\ A ``transfer of copyright ownership'' is defined in section 
101 of the Copyright Act as ``an assignment, mortgage, exclusive 
license, or any other conveyance, alienation, or hypothecation of a 
copyright or of any of the exclusive rights comprised in a 
copyright, whether or not it is limited in time or place of effect, 
but not including a nonexclusive license.'' 17 U.S.C. 101. Their 
validity is governed by 17 U.S.C. 204.
    \2\ A document ``pertaining to a copyright'' is currently 
defined by the Office as one that ``has a direct or indirect 
relationship to the existence, scope, duration, or identification of 
a copyright, or to the ownership, division, allocation, licensing, 
transfer, or exercise of rights under a copyright. That relationship 
may be past, present, future, or potential.'' 37 CFR 201.4(a)(2).
    \3\ A ``notice of termination'' is a notice that terminates a 
grant to a third party of a copyright in a work or any rights under 
a copyright. Only certain grants may be terminated, and only in 
certain circumstances. Termination is governed by three separate 
provisions of the Copyright Act, with the relevant one depending on 
a number of factors, including when the grant was made, who executed 
it, and when copyright was originally secured for the work. See 17 
U.S.C. 203, 304(c), 304(d).
    \4\ 17 U.S.C. 205(a); see also id. at 205(b) (``The Register of 
Copyrights shall, upon receipt of a document as provided by 
subsection (a) and of the fee provided by section 708, record the 
document and return it with a certificate of recordation.'').
    \5\ Id. at 203(a)(4), 304(c)(4).
    \6\ Id. at 304(d)(1).
    \7\ Id. at 702, 705(a).
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    Congress has encouraged the submission of documents for recordation 
by providing certain legal entitlements as a consequence of 
recordation. For example, recordation provides constructive notice of 
the facts stated in the recorded document when certain conditions are 
met.\8\ In addition, recordation is a condition for the legal 
effectiveness of notices of termination.\9\ Thus, the Office has an 
important interest in ensuring that the public record of copyright 
transactions is as timely, complete, and accurate as possible.
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    \8\ Id. at 205(c).
    \9\ Id. at 203(a)(4)(A), 304(c)(4)(A), 304(d)(1).
---------------------------------------------------------------------------

    The current recordation process is a time-consuming and labor-
intensive paper-based one, requiring remitters to submit their 
documents in hard copy. Once received, Office staff must, among other 
things, digitize the paper document, process the fee payment including 
confirming that the correct fee was submitted, examine the document to 
confirm its eligibility for recordation, search through the document 
for various and often extensive indexing information, manually input 
such information into the Office's public catalog, and print and mail 
back to the remitter a copy of the document marked as having been 
recorded along with a certificate of recordation. This process can also 
involve considerable correspondence with remitters to remedy deficient 
submissions before they can be recorded. Since late 2014, the Office 
has permitted remitters to submit some indexing information in 
electronic form, limited to lists of titles of the works associated 
with the submitted document, but this too can involve a significant 
amount of correspondence with remitters and manual input on the part of 
staff to complete the recordation.\10\ Furthermore, electronic 
submission of documents remains unavailable.
---------------------------------------------------------------------------

    \10\ See 37 CFR 201.4(c)(4); 79 FR 55633 (Sept. 17, 2014).
---------------------------------------------------------------------------

    The Office is seeking to modernize this process in coming years by 
developing a fully electronic, online system through which remitters 
will be able to submit their documents and all applicable indexing 
information to the Office for recordation. The amendments proposed 
today are designed to update the Office's current regulations to govern 
the submission of documents to the Office for recordation once the new 
electronic system is developed and launched. Though the Office cannot 
currently estimate how long it will take to complete the new system, 
the Office is seeking public comments at this time because the Office 
must, at present, make a number of policy decisions critical to the 
design of the to-be-developed system. Additionally, while

[[Page 22772]]

the proposed amendments are designed with a new electronic submission 
system in mind, at least some of the proposed changes could be 
implemented in the near future, without the new system (e.g., accepting 
electronically signed documents and new requirements for electronic 
title lists, completeness, and redactions). Thus, to the extent 
possible under the Office's current paper system, and depending on the 
comments received in response to this notice, the Office plans to adopt 
some aspects of the proposed rule on an interim basis until such time 
as the electronic system is complete and a final rule is enacted.
    The proposed amendments are a continuation of the discussion that 
began in 2014, when the Office issued a notice of inquiry soliciting 
public comments on certain aspects of recordation modernization.\11\ 
After receiving written comments from 24 stakeholders, the Office held 
roundtable meetings in California and New York where 48 participants 
provided further input.\12\ This public process led to a 133-page 
report by the Office's inaugural Abraham L. Kaminstein Scholar in 
Residence, Professor Robert Brauneis: Transforming Document Recordation 
at the United States Copyright Office (the ``Brauneis Report''). Many 
of the provisions in the proposed amendments adopt or are based on the 
recommendations set forth in the Brauneis Report.
---------------------------------------------------------------------------

    \11\ 79 FR 2696 (Jan. 15, 2014).
    \12\ Robert Brauneis, Transforming Document Recordation at the 
U.S. Copyright Office 8 (Dec. 2014), https://www.copyright.gov/docs/recordation/recordation-report.pdf. [hereinafter Brauneis Report].
---------------------------------------------------------------------------

II. The Proposed Rules

A. Transfers of Copyright Ownership and Other Documents Pertaining to a 
Copyright

    The proposed amendment to 37 CFR 201.4 will provide a number of 
necessary updates to the Office's regulations governing submission for 
recordation of transfers of copyright ownership and other documents 
pertaining to a copyright. The general mechanics of the proposed 
amendment are essentially the same as under the Office's current rules 
and policies. To be eligible for recordation, the document must satisfy 
certain requirements, be submitted properly, and be accompanied by the 
applicable fee. As before, the date of recordation will be the date 
when all of the required elements are received by the Office, and the 
Office may reject any document submitted for recordation that fails to 
comply with the Office's rules and instructions.
    Electronic Submissions. The Office proposes permitting remitters to 
submit documents for recordation electronically through a to-be-
developed online system. It is planned that the new system will 
essentially require remitters to provide four things: The document to 
be recorded, indexing information about the document (i.e., information 
necessary for the Office's public catalog), assent to various 
certifying statements, and payment of the applicable fee.\13\ Rather 
than continuing to have Office staff search the document for the 
relevant indexing information and manually input it into the Office's 
public catalog, the system will instead, as recommended by the Brauneis 
Report,\14\ walk the remitter through the process of providing indexing 
information directly, which will likely include a bulk-upload feature 
for documents that pertain to a large number of works. Having the 
remitter provide this information will be far more efficient than the 
current process and will allow the Office to record documents much 
faster and for smaller fees. It should also reduce the chance of errors 
entering the public record because Office staff will no longer be 
manually transcribing indexing information. The Office has previously 
determined that having remitters provide indexing information for 
recordations is permissible under the Copyright Act.\15\
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    \13\ Appropriate recordation-related fees will be evaluated and 
determined through a fee study at a later date closer to 
implementation of the electronic system.
    \14\ See Brauneis Report at 88-96 (noting that stakeholders 
``generally reacted very positively to the proposal to have 
remitters submit catalog information'').
    \15\ See 79 FR at 55634-35 (concluding that ``the Register may 
assign the task of indexing to another and issue implementing 
regulations; her duty is to ensure that indexes of records are 
prepared'').
---------------------------------------------------------------------------

    The system will also require a digital scan of the document to be 
uploaded and for various certifications, discussed below, to be made 
via the electronic system. Lastly, the Office currently plans for 
online payment to be made through Pay.gov. Given the automated nature 
of the contemplated electronic system, the Office is evaluating whether 
or not to continue allowing remitters to pay through deposit accounts, 
which currently is a largely manual, offline process. The Office 
welcomes comment on this issue, including whether potential users of 
deposit accounts would be willing to pay a surcharge for the 
development and maintenance of an automated deposit account system.
    Paper Submissions. In addition to electronic submissions, the 
Office proposes, as the Brauneis Report recommended,\16\ retaining a 
paper submission process similar to the Office's current process. The 
proposed amendment requires paper submissions to be accompanied by a 
cover sheet that will likely be similar to the current Form DCS. The 
cover sheet could, but need not, be used to make the various required 
certifications discussed below.
---------------------------------------------------------------------------

    \16\ See Brauneis Report at 59-60.
---------------------------------------------------------------------------

    Remitters would also continue to be permitted to provide electronic 
lists of certain indexing information about the works to which the 
document pertains. As under the Office's current regulations, the 
electronic list will not be considered part of the recorded document, 
but will only be used for indexing purposes. The proposed amendment 
removes much of the current regulation's details surrounding the 
formatting of electronic title lists, instead specifying that such 
lists must be prepared and submitted in the manner specified by the 
Office in instructions it will post on its Web site. This change will 
allow the Office to develop easier and more flexible instructions for 
remitters that can be updated and modified as needed without resorting 
to a rulemaking. The proposed rule also continues the current rule that 
the Office may reject improperly prepared electronic title lists. The 
Office, however, will no longer permit corrections of errors or 
omissions in electronic title lists (see ``Parties Bear Consequences of 
Inaccuracies'' below).
    The Office proposes continuing to provide return receipts for paper 
submissions when a remitter provides two copies of the cover sheet and 
a self-addressed, postage-paid envelope. As before, this will simply 
confirm the Office's receipt of the submission as of the indicated 
date, but not establish eligibility for, or the date of, recordation.
    Originals, Copies, and Actual Signatures. The Office proposes to 
continue to require, in accordance with section 205(a), that to record 
a document, remitters must submit either the original document 
``bear[ing] the actual signature of the person who executed it'' or a 
``true copy of the original, signed document'' accompanied by a ``sworn 
or official certification.'' An argument can be made, as the Brauneis 
Report pointed out, that even if a natively electronic document could 
be considered an ``original document,'' by submitting it to the Office 
over the internet through the

[[Page 22773]]

new system, what the Office receives would nonetheless technically be a 
``copy'' of the original, which would be left on the computer from 
which the submission was made.\17\ A similar argument might be made 
about electronically signed documents filed either through the paper or 
electronic submission process. Thus, to avoid any doubt about the 
sufficiency of a recordation on the basis of whether or not the 
submitted document is an original or a copy, the proposed amendment 
would consider any document either submitted electronically through the 
new system, or lacking a handwritten, wet signature (e.g., any document 
bearing an electronic signature) to be a ``copy'' within the meaning of 
section 205. In practice, this is unlikely to significantly affect 
remitters; the only consequence is that each such submission will need 
to be accompanied by a sworn or official certification.
---------------------------------------------------------------------------

    \17\ See id. at 65.
---------------------------------------------------------------------------

    One of the more significant proposed changes from current practices 
concerns the definition of the statutory term ``actual signature.'' 
Currently, that term is undefined in the Office's regulations, but in 
practice, the Office has required original documents to bear 
handwritten, wet signatures and copies of documents to reproduce such 
handwritten, wet signatures. Electronic signatures are not permitted. 
As the Brauneis Report recommends, the Office proposes to change 
that.\18\
---------------------------------------------------------------------------

    \18\ See id. at 57, 60.
---------------------------------------------------------------------------

    In recent years, courts have found electronically signed transfers 
of copyright ownership to be valid under 17 U.S.C. 204, which requires 
that such transfers be ``in writing and signed.'' \19\ These cases 
turned on the applicability of the Electronic Signatures in Global and 
National Commerce Act (``E-Sign Act''), enacted in 2000, which provides 
that ``with respect to any transaction in or affecting interstate or 
foreign commerce. . . a signature, contract, or other record relating 
to such transaction may not be denied legal effect, validity, or 
enforceability solely because it is in electronic form.'' \20\ The E-
Sign Act also defines ``electronic signature'' and does so broadly, as 
``an electronic sound, symbol, or process, attached to or logically 
associated with a contract or other record and executed or adopted by a 
person with the intent to sign the record.'' \21\
---------------------------------------------------------------------------

    \19\ See, e.g., Metro. Reg'l Info. Sys. v. Am. Home Realty 
Network, Inc., 722 F.3d 591, 601-02 (4th Cir. 2013) (``[A]n 
electronic agreement may effect a valid transfer of copyright 
interests under Section 204 of the Copyright Act.'').
    \20\ 15 U.S.C. 7001(a)(1).
    \21\ Id. at 7006(5).
---------------------------------------------------------------------------

    For instance, in Metropolitan Regional Information Systems, Inc. v. 
American Home Realty Network, Inc., the U.S. Court of Appeals for the 
Fourth Circuit held that a subscriber who ``clicks yes'' in response to 
an electronic terms of use agreement prior to uploading copyrighted 
photographs to an online database signed a written transfer within the 
meaning of 17 U.S.C. 204(a).\22\ After determining that none of the E-
Sign Act's exceptions applied, the court concluded that ``[t]o 
invalidate copyright transfer agreements solely because they were made 
electronically would thwart the clear congressional intent embodied in 
the E-Sign Act.'' \23\ Similarly, in Sisyphus Touring, Inc. v. TMZ 
Productions, Inc., the U.S. District Court for the Central District of 
California found that a valid transfer under section 204(a) had been 
effected through an email exchange.\24\ The E-Sign Act was important to 
the court's decision that ``the emails [were] sufficient to act as [the 
transferor's] signature'' and that clicking ``send'' was similar to 
clicking ``yes'' as in Metropolitan Regional Information Systems.\25\
---------------------------------------------------------------------------

    \22\ 722 F.3d at 601-02.
    \23\ Id.
    \24\ 208 F. Supp. 3d 1105, 1112-14, (C.D. Cal. 2016), appeal 
docketed, No. 16-56471 (9th Cir. Oct. 7, 2016).
    \25\ Id.
---------------------------------------------------------------------------

    Because they bore electronic signatures, neither of the documents 
at issue in those cases is currently recordable under the Office's 
rules and practices. The Office believes it important that this change. 
The Office's regulations and processes should be flexible enough to 
permit any document that may constitute a transfer under section 204 to 
be recordable under section 205. Thus, the Office proposes defining 
``actual signature'' as any legally binding signature, including an 
electronic signature as defined by the E-Sign Act. Regardless of 
whether the E-Sign Act actually applies to other types of recordable 
documents, the Office views it as persuasive guidance as to how 
Congress would want the signature requirement to be interpreted in this 
context. The Government Paperwork Elimination Act is also persuasive, 
in that it directs executive agencies to provide ``for the option of 
electronic maintenance, submission, or disclosure of information, when 
practicable as a substitute for paper'' and ``for the use and 
acceptance of electronic signatures, when practicable.'' \26\ The 
Office agrees with the Brauneis Report's assessment that this ``Act 
expresses the intent of Congress to enable citizens to interact 
electronically with the federal government, and in particular to be 
able to use electronic signatures whenever signatures are required in 
documents submitted to the government.'' \27\
---------------------------------------------------------------------------

    \26\ See Public Law 105-277, tit. xvii, sec. 1704, 112 Stat. 
2681, 2681-750 (1998).
    \27\ See Brauneis Report at 63.
---------------------------------------------------------------------------

    The Brauneis Report, however, raised concern over broadening the 
definition too far, noting that doing so could potentially include 
``acts that do not generate a trace that is easily remitted as `a 
signature' on `a document.' '' \28\ As a result, the Brauneis Report 
recommended requiring that the signature be in a `` `discrete and 
identifiable form' on the remitted document.'' \29\ The Office proposes 
resolving this concern another way. Rather than restrict the definition 
of signature, the proposed rule would require that where an actual 
signature is not a handwritten or typewritten name, such as when an 
individual clicks a button on a Web site or application to agree to 
terms of use, the remitter would be required to submit evidence 
demonstrating the existence of the signature. For example, the remitter 
could append a database entry or confirmation email to a copy of the 
terms showing that a particular user agreed to them by clicking ``yes'' 
on a particular date. While remitters may be confronted with more 
challenging scenarios, the Office is inclined to leave it to the 
remitter to decide how best to show the Office that a particular 
submitted document has been signed. The Office will then assess such 
evidence on a case-by-case basis to determine eligibility for 
recordation.
---------------------------------------------------------------------------

    \28\ Id. at 66.
    \29\ Id.
---------------------------------------------------------------------------

    Lastly, the Office notes that the proposed regulatory definition of 
``actual signature'' is consistent with section 205 of the Copyright 
Act. Congress's use of the word ``actual'' does not appear to do 
anything more than differentiate the signature on an original document 
from the reproduction of that signature on a copy of the document. The 
``or'' in section 205(a) and the explanation in the Copyright Act's 
legislative history indicate that either the original document with its 
``actual signature'' can be submitted for recordation or a true copy 
that does not bear an ``actual

[[Page 22774]]

signature'' but is of the ``original, signed document'' can be 
submitted instead.\30\
---------------------------------------------------------------------------

    \30\ See 17 U.S.C. 205(a) (stating that a document ``may be 
recorded . . . if the document . . . bears the actual signature of 
the person who executed it, or if it is accompanied by a sworn or 
official certification that it is a true copy of the original, 
signed document.'') (emphasis added); H.R. Rep. No. 94-1476, at 128 
(1976) (``Any `document pertaining to a copyright' may be recorded 
under subsection (a) if it `bears that actual signature of the 
person who executed it,' or if it is appropriately certified as a 
true copy.''); S. Rep. No. 94-473, at 112 (1975) (same).
---------------------------------------------------------------------------

    Certifications. Under the proposed amendment, remitters would be 
required to provide essentially two sets of certifications. First, the 
Office proposes that the remitter must personally certify that he or 
she has appropriate authority to submit the document for recordation 
and that the information submitted to the Office by the remitter is 
true, accurate, and complete to the best of the remitter's knowledge. 
Unlike the other certifications, discussed below, which pertain to the 
actual document being submitted for recordation, these concern the 
remitter's authority to make the recordation and the veracity of the 
indexing and other information provided as a part of the submission. 
For electronic submissions, it is envisioned that these certifications 
will be made through the new system by checking a box and/or 
electronically signing one's name. For paper submissions, the remitter 
could make these certifications by signing, either electronically or by 
hand, the required cover sheet.
    Second, the proposed amendment would require certifications that 
the document conforms to the Office's completeness, legibility, and 
redaction rules, discussed below. Where the submitted document is a 
copy, a sworn or official certification would also be required. Section 
205(a) specifically requires this last certification, stating that a 
document may be recorded ``if it is accompanied by a sworn or official 
certification that it is a true copy of the original, signed 
document.'' \31\ The statute further explains that ``[a] sworn or 
official certification may be submitted to the Copyright Office 
electronically, pursuant to regulations established by the Register of 
Copyrights.'' \32\
---------------------------------------------------------------------------

    \31\ 17 U.S.C. 205(a).
    \32\ Id.
---------------------------------------------------------------------------

    The proposed rule would not substantively alter the definition of 
``official certification,'' but clarifies that it can be signed 
electronically whether submitted electronically or on paper. The 
proposed amendment would, however, simplify the definition of ``sworn 
certification,'' as recommended by the Brauneis Report,\33\ in addition 
to making the same clarification regarding electronic signatures. Under 
the current definition, a sworn certification can be an affidavit under 
the official seal of any officer authorized to administer oaths within 
the United States, or if the original is located outside of the United 
States, under the official seal of any diplomatic or consular officer 
of the United States or of a person authorized to administer oaths 
whose authority is proved by the certificate of such an officer, or a 
statement in accordance with 28 U.S.C. 1746.\34\ The Office has rarely 
received certifications in the form of affidavits under official seal 
and is frequently asked questions by confused remitters regarding what 
can constitute a sworn certification. Thus, the Office believes it will 
be easier, simpler, and less likely to confuse remitters who may think 
this requirement is more burdensome than intended, to only permit 
certifications in the form of statements that comply with 28 U.S.C. 
1746. That provision essentially states that wherever a law requires or 
permits a matter to be supported by a sworn certification, such matter 
can instead be supported by an unsworn certification if it is in 
writing, dated, signed, made under penalty of perjury, and in 
``substantially'' the form prescribed by the statute.\35\
---------------------------------------------------------------------------

    \33\ See Brauneis Report at 67-68.
    \34\ 37 CFR 201.4(a)(3)(i).
    \35\ 28 U.S.C. 1746 (such form being, ``I declare (or certify, 
verify, or state) under penalty of perjury under the laws of the 
United States of America that the foregoing is true and correct. 
Executed on (date).
    (Signature)'').
---------------------------------------------------------------------------

    Consequently, the Office proposes that as part of any submission of 
a copy of a document for recordation, a certification be included along 
the lines of the following:

    I certify under penalty of perjury under the laws of the United 
States of America that the accompanying document being submitted to 
the U.S. Copyright Office for recordation is, to the best of my 
knowledge, a true and correct copy of the original, signed document.

Adding that the certification is being made to the best of the 
certifier's knowledge, should address concerns referenced in the 
Brauneis Report that in many cases the certifier may not have access to 
the original document and thus would not be in a position to 
definitively swear to the submitted copy being a true copy of the 
original, signed document.\36\ The changes to section 1746's form 
language appear to be permissible, as the statute only requires that 
the certification be in ``substantially'' the prescribed form.\37\ 
Allowing the certification to be signed electronically appears to be 
permissible as well based on case law under 28 U.S.C 1746 \38\ and the 
language in 17 U.S.C. 205(a) that expressly permits sworn or official 
certifications to be submitted to the Office ``electronically, pursuant 
to regulations established by the Register.'' \39\
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    \36\ See Brauneis Report at 68-69.
    \37\ See 28 U.S.C. 1746; see also Cobell v. Norton, 391 F.3d 
251, 260 (D.C. Cir. 2004) (``28 U.S.C. 1746 contemplate[s] as 
adequate certifications that are `substantially' in the form of the 
language of their provisions. A declaration or certification that 
includes the disclaimer `to the best of [the declarant's] knowledge, 
information or belief' is sufficient under . . . the statute.''); 
Dye v. Kopiec, No. 16 Civ. 2952 (LGS), 2016 U.S. Dist. LEXIS 175144, 
at *5 (S.D.N.Y. Dec. 16, 2016) (declaration including the phrase 
``to the best of my knowledge, information and belief'' was a 
``slight variation . . . [from] the affirmation prescribed by 28 
U.S.C. 1746 [and] is not sufficient to reject Defendant's 
declaration'').
    \38\ See, e.g., U.S. v. Hyatt, No. 06-00260-WS, 2008 U.S. Dist. 
LEXIS 16253, at *6-7 (S.D. Ala. Mar. 3, 2008) (``1746 do[es] not 
expressly require a signature by hand. . . . It appears that courts 
have routinely concluded that electronic signatures have the same 
effect as hand signatures unless court rules provide otherwise.''); 
W. Watersheds Project v. BLM, 552 F. Supp. 2d 1113, 1123 (D. Nev. 
2008) (declaration ``contain[ing] an indication of an electronic 
signature'' permitted under section 1746); Tishcon Corp. v. 
Soundview Commc'ns, Inc., No. 1:04-CV-524-JEC, 2006 U.S. Dist. LEXIS 
97309, at *10-12 (N.D. Ga. Feb. 14, 2006) (declaration with 
electronic signature permitted under section 1746, as it ``evinced 
[the declarant's] intention to submit sworn declarations'')
    \39\ See 17 U.S.C. 205(a). This language was added to section 
205(a) in 2010 to ``make [the copyright system and] the Office's 
operations more efficient,'' ``facilitate [the Office's] transition 
to digital files and record keeping,'' and ``make it easier for 
filers to submit documents electronically.'' 156 Cong. Rec. S6594 
(daily ed. Aug. 2, 2010) (statement of Sen. Leahy, Chairman, S. 
Comm. on the Judiciary); see Copyright Cleanup, Clarification, and 
Corrections Act of 2010, Public Law 111-295, 124 Stat. 3180 (2010).
---------------------------------------------------------------------------

    The Office also proposes expanding the categories of people who can 
make such a certification to include not only one of the parties to the 
signed document and the authorized representative of such party, but 
also any person having an interest in a copyright to which the document 
pertains, as well as such person's authorized representative. The 
Brauneis Report notes that there are many situations where no party to 
the document is available to sign the certification or authorize a 
representative to do so.\40\ Recognizing this, the amended language 
will alternatively permit others, such as successors in interest or 
third-party beneficiaries, to sign it or have their own representative 
do so on their behalf. The Office will likely require any authorized 
representative to specify who they represent and any non-party

[[Page 22775]]

to briefly describe the nature of his or her relevant copyright 
interest.
---------------------------------------------------------------------------

    \40\ See Brauneis Report at 67-68.
---------------------------------------------------------------------------

    It is currently envisioned that whether a submission is made 
electronically or on paper, the remitter can, but need not, be the one 
to make this second set of required certifications (concerning 
completeness, legibility, redactions, and being a true copy of the 
original document). The Office understands that the actual remitter--
the person logging into the electronic system or filling out the 
document coversheet--may be a paralegal or other support staff member, 
and may not necessarily be in a position to make these certifications. 
As a result, while the electronic system and paper cover sheet will 
likely have a place where the remitter can make these certifications, 
in order to provide greater filing flexibility, the Office also intends 
to permit the remitter to instead attach a separate certifying 
statement made by another individual. The Office will likely provide a 
standard form certification and require that it be used in such 
situations. When making a paper submission, the form would be included 
along with the cover sheet and document. When submitting 
electronically, the remitter would be able to upload a digital scan of 
the signed certification form.
    Completeness and Legibility. As under current regulations, the 
Office will continue to require documents submitted for recordation to 
be complete and legible. The Office proposes simplifying the 
completeness requirement to only mandate that the document be complete 
by its terms, and include all referenced schedules, appendices, 
exhibits, addenda, or other material essential to understanding the 
copyright-related aspects of the document. This is a change from 
current practice, where the Office requires people to submit documents 
including all schedules, or provide an explanation for why such 
material cannot be provided. In contrast, under the proposed 
amendments, if, for example, a document has several schedules, but only 
one has any relevance to the copyright-related terms of the agreement, 
the document would be deemed complete so long as that schedule is 
included; the other schedules can be omitted. The Office sees no reason 
to burden remitters with having to submit and Office staff with having 
to review what can often be a significant volume of material completely 
unrelated to the copyright terms of the document.
    Redactions. Currently, the Office permits documents submitted for 
recordation to contain redactions as an interim practice, not codified 
in the Office's regulations.\41\ The proposed rule codifies and amends 
this policy. Most significantly, the proposed rule would limit 
redactions to certain sensitive information, including financial, trade 
secret, and personally identifiable information. This approach largely 
comports with the Brauneis Report, which suggested that ``[a] redaction 
regulation formulated as a list of specific redaction categories that 
are allowed, rather than as a general prohibition on redactions that 
obscure the essential terms of a transaction, may be easier for 
remitters to follow.'' \42\
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    \41\ See 70 FR 44049, 44051 (Aug. 1, 2005); U.S. Copyright 
Office, Compendium of U.S. Copyright Office Practices Sec.  
2309.9(E) (3d ed. 2014).
    \42\ See Brauneis Report at 81.
---------------------------------------------------------------------------

    Additionally, in response to the Brauneis Report's fear that, on 
the other hand, a specific list of permitted redaction categories may 
deter recordation in certain circumstances,\43\ the Office intends to 
allow remitters to request and justify in writing the need to redact 
any other information, which the Office may permit in its discretion. 
It is envisioned that if the remitter is submitting the document 
electronically, such requests could made directly through the new 
system. The Office does not, however, plan to build redaction tools 
into the new system, so any redactions would need to be made prior to 
uploading the document. As under the Office's current interim guidance, 
blank or blocked-out portions of the document will need to be labeled 
``redacted'' or an equivalent and all portions of the document required 
by the simplified completeness requirement must be included, even if an 
entire page is redacted. The proposed amendment also adds that upon 
request, for review purposes, the remitter may be required to supply 
the Office with an unredacted copy of the document or additional 
information about the redactions.
---------------------------------------------------------------------------

    \43\ See id.
---------------------------------------------------------------------------

    English Language Requirement. The Office proposes to continue 
accepting and recording non-English language documents only if 
accompanied by an English translation signed by the individual making 
the translation. The Office further proposes to extend the translation 
requirement to any indexing information provided by the remitter. 
Whether a document is submitted via the paper or electronic process, a 
translation is necessary for Office staff to review the document and 
confirm its eligibility for recordation. Additionally, when submitted 
pursuant to the paper process, the translation is also needed for staff 
to index the document.
    For non-English language documents submitted electronically through 
the new system, it is anticipated that the system will be able to 
accommodate the remitter providing indexing information in the native 
language of the document, rather than in English. But, while the Office 
proposes to accept non-English indexing information into the electronic 
system, it still needs a translation of that information for review 
purposes. The Office also believes it in the public's best interest to 
continue requiring English translations and to make those translations 
publicly available so that those who may have an interest in a 
particular copyrighted work, but who may not speak the native language 
of a pertinent document, can still learn of the document's existence 
and understand its basic meaning. The Office also notes that this 
requirement is in accord with the U.S. Patent and Trademark Office's 
recordation regulations.\44\ As the Office proposes to continue making 
all translations available for public inspection, as done currently, it 
also proposes that they be subject to the same redaction rules 
applicable to the underlying documents.
---------------------------------------------------------------------------

    \44\ See 37 CFR 3.26 (``The [Patent and Trademark] Office will 
accept and record non-English language documents only if accompanied 
by an English translation signed by the individual making the 
translation.'').
---------------------------------------------------------------------------

    Indexed Information. Though the Office is disinclined to list 
specific categories of indexing information in its regulations, the 
Office seeks input on what indexing information the Office should ask 
remitters to provide. For example, document type, parties, party 
addresses, third-party beneficiaries, date of execution, effective 
date, title information (including copyright owner and author identity, 
alternate titles, related registration numbers, and standard 
identifiers for both works and authors), and related recordation 
numbers are among the information being contemplated.
    Parties Bear Consequences of Inaccuracies. The Office intends to 
continue its current practice of relying on the information provided by 
remitters for indexing purposes and requiring parties in interest to 
bear the consequences of any inaccuracies in such information. The 
Office has previously determined that ``for the rule to result in the 
efficient cataloging of documents submitted for recordation, the burden 
for creating accurate electronic title lists, and thus the legal 
consequences for failing to do so, must be on the remitter.'' \45\ The 
proposed

[[Page 22776]]

rule carries this conclusion to all remitter-provided information, 
including not just electronic title lists, but also the cover sheet 
accompanying paper submissions and any information provided through the 
new electronic recordation system. The proposed amendment also 
clarifies that it is not necessarily always the remitter who bears the 
consequences of inaccuracies. More accurately, it is the parties to the 
remitted document, including any successors in interest or third-party 
beneficiaries who bear the consequences, if any, of any inaccuracies in 
the information provided to the Office by the remitter.
---------------------------------------------------------------------------

    \45\ 79 FR at 55634-35 (also discussing Office's authority to do 
so); accord Brauneis Report at 93-99 (``[T]his report recommends 
burdening remitters . . . with the responsibility to provide 
accurate cataloging information . . . .'').
---------------------------------------------------------------------------

    The Office is inclined to also continue its current general 
practice of not permitting corrections to be made for any such 
inaccuracies after the document is recorded. Instead, as now, the 
remitter would need to resubmit the document for recordation with 
corrected information and it will be treated as any other first-time-
submitted document, though the Office's catalog record for both the 
original and corrected recordations will likely be linked to make clear 
that an updated filing was made. For purposes of uniformity and 
efficiency, the Office is inclined to discontinue permitting 
corrections of inaccurate electronic title lists that accompany paper 
filings. Such errors should be treated the same as if the error was 
made on the cover sheet or through the new system. With the 
introduction of the new system and what will likely be a significant 
reduction in paper filings, the Office sees no reason to continue 
special treatment of electronic title lists going forward. To have an 
efficient recordation system with an affordable fee, it is simply 
impractical for Office staff to review all remitter-provided indexing 
information, which also means that it would be very difficult to review 
``corrected'' submissions against the original to confirm that the 
remitter is not attempting to do something improper under the guise of 
a correction.
    Recordation Certificate and Returning of Document. As before, once 
recorded, the document will be returned to the remitter with a 
certificate of recordation, as required by section 205(b). Currently, 
all recorded documents are digitally imaged and electronically stamped 
with the document's official recordation number and page numbers. This 
stamped copy is then printed and sent to the remitter with a paper 
recordation certificate. Where an original document is submitted, it is 
also returned. The Office intends to continue this process for paper 
submissions. For electronic submissions, as recommended by the Brauneis 
Report, the Office intends to discontinue printing and mailing 
certificates of recordation and stamped copies of recorded documents 
once the new system is launched.\46\ Instead, the Office plans to email 
the certificate and stamped copy of the document to the remitter and 
make them available to the remitter electronically through his or her 
system account. Doing so will be faster and less expensive than 
continuing to manually print and mail them which will help bring down 
the overall recordation filing fee. The Office intends to still make 
paper certificates and print outs of the stamped copy of a document 
available to electronic filers wanting one for an additional fee.
---------------------------------------------------------------------------

    \46\ See Brauneis Report at 108-09 (``Stakeholders were 
uniformly in favor of receiving recorded documents and certificates 
electronically rather than on paper.'').
---------------------------------------------------------------------------

    Public Availability of Recorded Documents. Currently, while indexed 
information about recorded documents is available to the public through 
the Office's online catalog, the documents themselves are not. They are 
only available for in-person inspection at the Office's reading room in 
Washington, DC or by making a search and retrieval request. The Office 
plans, as recommended by the Brauneis Report,\47\ to update this 
practice going forward by making all documents recorded after the 
launch of the new system available on the internet, regardless of 
whether the document was submitted through the new system or via the 
paper process described above. The Office sees no reason why someone 
should be required to travel to Washington, DC or to make an expensive 
search and retrieval request to view these records. Privacy, 
confidentiality, and other related concerns with making these documents 
available online should be allayed by the proposed redaction rules 
discussed above.
---------------------------------------------------------------------------

    \47\ See id. at 76-83.
---------------------------------------------------------------------------

    In the future, the Office intends to explore also making documents 
recorded prior to the system's introduction available online, and will 
issue an NPRM on the subject at a later date to address issues such as 
redaction.
    Constructive Notice. The proposed amendment makes clear that for 
constructive notice under 17 U.S.C. 205(c) to attach with regard to 
works to which a recorded document pertains, the document must include 
or be accompanied by the title and copyright registration number of 
each such work.\48\
---------------------------------------------------------------------------

    \48\ See H.R. Rep. No. 94-1476, at 128 (1976) (``[S]ubsection 
(c) makes clear that the recorded document will give constructive 
notice of its contents only if two conditions are met: (1) The 
document or attached material specifically identifies the work to 
which it pertains so that a reasonable search under the title or 
registration number would reveal it, and (2) registration has been 
made for the work.''); S. Rep. No. 94-473, at 112 (1975) (same).
---------------------------------------------------------------------------

B. Notices of Termination

    The proposed amendment to 37 CFR 201.10(f) concerning submission of 
notices of termination to the Copyright Office for recordation largely 
tracks the proposed amendment to 37 CFR 201.4 discussed above, to the 
extent applicable. The Office notes that it is not proposing any 
changes to the form, content, or manner of service of notices of 
termination at this time; only how they are submitted to the Office for 
recordation.
    As with documents submitted for recordation under section 205, 
remitters will be able to submit notices of termination for recordation 
either electronically through the new system or in paper hardcopy. To 
record a notice, it will need to satisfy the Office's requirements, be 
submitted in accordance with the Office's rules and instructions, and 
be accompanied by the appropriate filing fee. Unlike section 205 
documents, for which recordation is optional, notices of termination 
must be recorded with the Office ``as a condition to its taking 
effect.'' \49\ As before, the date of recordation will be the date when 
all of the required elements are received by the Office, and the Office 
may reject any notice submitted for recordation that fails to comply 
with the Office's rules and instructions.
---------------------------------------------------------------------------

    \49\ 17 U.S.C. 203(a)(4)(A), 304(c)(4)(A), 304(d)(1).
---------------------------------------------------------------------------

    Submission Requirements. The proposed requirements governing what 
must be submitted to the Office for recordation remain essentially 
unchanged. Remitters would be required to provide a complete and 
legible copy of the signed notice of termination as served on the 
grantee or successor in title. If separate copies of the same notice 
were served on more than one grantee or successor, only one copy would 
need to be submitted to the Office for recordation. The proposed 
amendment clarifies some ambiguity about the form of the signature 
appearing on the notice. The manner by which notices are to be signed 
is governed by paragraph (c) of 37 CFR 201.10, not paragraph (f), and 
the proposed rule makes clear that however the notice is signed, what 
must be submitted to the Office for recordation

[[Page 22777]]

is a copy of the as-served notice, including the reproduced image of 
the signature as it appeared on that served notice.
    As now, the proposed rule would also require remitters to submit a 
statement setting forth the date on which the notice was served and the 
manner of service, unless that information is already contained within 
the notice itself. Also as under the current rule, the proposed 
amendment makes clear that where service was made by first class mail, 
the date of service is the day the notice was deposited with the post 
office. The Office's timeliness rule also would remain unchanged. The 
Office will continue to refuse notices if they are untimely. Such 
scenarios where a notice would be deemed untimely include when the 
effective date of termination does not fall within the five-year period 
described in section 203(a)(3) or section 304(c)(3), as applicable, the 
documents submitted indicate that the notice was served less than two 
or more than ten years before the effective date of termination, and 
the date of recordation is after the effective date of termination.
    Lastly, the proposed rule would add a requirement for various 
certifications. The remitter would have to personally certify that he 
or she has appropriate authority to submit the notice for recordation 
and that all information submitted to the Office by the remitter is 
true, accurate, and complete to the best of the remitter's knowledge. 
The proposed amendment would also require submission of certifications, 
which need not be made by the remitter, that the copy of the notice 
being submitted is a true, correct, complete, and legible copy of the 
as-served signed notice. Procedurally, the submission of these 
certifications would work the same way as described above for the 
certifications relevant to section 205 recordations.
    Submission Procedure. Electronic submission through the to-be-
developed system would work basically the same as for section 205 
documents discussed above, but will be tailored specifically to the 
needs of notices of termination. As with section 205 recordations, the 
new system will essentially require the remitter to provide four 
things: The notice to be recorded, indexing information about the 
notice (i.e., information necessary for the Office's public catalog), 
assent to various certifying statements, and payment of the applicable 
fee. It is intended that the new system will walk remitters through the 
process of providing all pertinent indexing information, helping to 
facilitate along the way that the notice is being made pursuant to the 
correct statutory provision and providing guidance as to applicable 
time limits, among other things. The Office intends to retain a paper 
submission process for notices of termination that will largely track 
the Office's current process, but will add the requirement of a cover 
sheet which will serve the same function as the cover sheet required 
for section 205 submissions discussed above. The Office also proposes 
offering return receipts for notices of termination upon the same terms 
offered for section 205 submissions.
    Parties Bear Consequences of Inaccuracies. As with section 205 
documents, and for the same reasons discussed above, the Office will 
rely on the information provided by remitters for indexing purposes and 
require parties in interest to bear the consequences of any 
inaccuracies in such information. Similarly, the Office is also 
inclined in the notice of termination context to continue its current 
general practice of not permitting corrections to be made for any such 
inaccuracies after the notice is recorded. Instead, as now, the 
remitter would need to resubmit the notice for recordation with 
corrected information and it will be treated as any other first-time-
submitted notice, though the Office's catalog record for both the 
original and corrected recordations will likely be linked to make clear 
that an updated filing was made.
    Recordation Certificate and Returning of Notice. As with section 
205 documents, and for the same reasons discussed above, for electronic 
submissions, the Office proposes to discontinue printing and mailing 
certificates of recordation and stamped copies of recorded notices of 
termination once the new system is launched. Instead, the Office plans 
to email the certificate and stamped copy of the notice to the remitter 
and make them available to the remitter electronically through his or 
her system account. The Office intends to still make paper certificates 
and print outs of the stamped copy of a notice of termination available 
to electronic filers wanting one for an additional fee.
    Public Availability of Recorded Notices. The Office is disinclined 
to make notices of termination available online to the public, as the 
Office believes that all pertinent information contained in a notice of 
termination is contained in the indexed information made part of the 
Office's online public catalog. This is in contrast to documents 
recorded under section 205 where relevant information may be contained 
in the document itself, but not the catalog record. However, the Office 
invites comment on whether posting scans of the actual notices online 
would be useful and whether there are any implications involved in 
doing so, such as a need to permit redactions. The Office notes that 
the actual notices are currently available to the public for in-person 
inspection in its reading room or through a search and retrieval 
request.

List of Subjects in 37 CFR Part 201

    Copyright, General provisions.

Proposed Regulations

    For the reasons set forth in the preamble, the Copyright Office 
proposes amending 37 CFR part 201 as follows:

PART 201--GENERAL PROVISIONS

0
1. The authority citation for part 201 continues to read as follows:

    Authority:  17 U.S.C. 702.

0
2. Revise Sec.  201.4 to read as follows:


Sec.  201.4  Recordation of transfers and other documents pertaining to 
copyright.

    (a) General. This section prescribes conditions for the recordation 
of transfers of copyright ownership and other documents pertaining to a 
copyright under 17 U.S.C. 205. A document is eligible for recordation 
under this section if it meets the requirements of paragraph (d), if it 
is submitted in accordance with the submission procedure described in 
paragraph (e), of this section, and if it is accompanied by the fee 
specified in 37 CFR 201.3(c). The date of recordation is the date when 
all of the elements required for recordation, including a proper 
document, fee, and any additional required information, are received in 
the Copyright Office. After recordation the document is returned to the 
sender with a certificate of recordation. The Office may reject any 
document submitted for recordation that fails to comply with 17 U.S.C. 
205 or the requirements of this section.
    (b) Documents not recordable under this section. This section does 
not govern the filing or recordation of the following documents:
    (1) Certain contracts entered into by cable systems located outside 
of the 48 contiguous States (17 U.S.C. 111(e); see 37 CFR 201.12);
    (2) Notices of identity and signal carriage complement, and 
statements of account of cable systems and satellite carriers and for 
digital audio recording devices and media (17 U.S.C. 111(d), 119(b), 
and 1003(c); see 37 CFR 201.11, 201.17, 201.28);
    (3) Notices of intention to obtain compulsory license to make and

[[Page 22778]]

distribute phonorecords of nondramatic musical works (17 U.S.C. 115(b); 
see 37 CFR 201.18);
    (4) Notices of termination (17 U.S.C. 203, 304(c) and (d); see 37 
CFR 201.10);
    (5) Statements regarding the identity of authors of anonymous and 
pseudonymous works, and statements relating to the death of authors (17 
U.S.C. 302);
    (6) Documents pertaining to computer shareware and donation of 
public domain software (Pub. L. 101-650, sec. 805; see 37 CFR 201.26);
    (7) Notifications from the clerks of the courts of the United 
States concerning actions brought under title 17, United States Code 
(17 U.S.C. 508);
    (8) Notices to libraries and archives of normal commercial 
exploitation or availability at reasonable prices (17 U.S.C. 
108(h)(2)(C); see 37 CFR 201.39);
    (9) Submission of Visual Arts Registry Statements (17 U.S.C. 113; 
see 37 CFR 201.25);
    (10) Notices and correction notices of intent to enforce restored 
copyrights (17 U.S.C. 104A(e); see 37 CFR 201.33, 201.34); and
    (11) Designations of agents to receive notifications of claimed 
infringement (17 U.S.C. 512(c)(2); see 37 CFR 201.38).
    (c) Definitions. For purposes of this section:
    (1) A transfer of copyright ownership has the meaning set forth in 
17 U.S.C. 101.
    (2) A document pertaining to a copyright is any document that has a 
direct or indirect relationship to the existence, scope, duration, or 
identification of a copyright, or to the ownership, division, 
allocation, licensing, or exercise of rights under a copyright. That 
relationship may be past, present, future, or potential.
    (3) An actual signature is any legally binding signature, including 
an electronic signature as defined in 15 U.S.C. 7006.
    (4) A sworn certification is a statement made in accordance with 28 
U.S.C. 1746 that the copy of the document submitted for recordation is, 
to the best of the certifier's knowledge, a true copy of the original, 
signed document. A sworn certification must be signed by at least one 
of the parties to the signed document, any person having an interest in 
a copyright to which the document pertains, or the authorized 
representative of such person or party. A sworn certification may be 
signed electronically whether submitted electronically or on paper.
    (5) An official certification is a certification, by the 
appropriate governmental official, that the original of the document is 
on file in a public office and that the copy of the document submitted 
for recordation is a true copy of the original. An official 
certification may be signed electronically whether submitted 
electronically or on paper.
    (d) Document requirements.
    (1) Original or certified copy. The remitter must submit either the 
original document that bears the actual signatures of the persons who 
executed it, or a copy of the original, signed document accompanied by 
a sworn certification or an official certification. All documents 
submitted via the electronic submission process in paragraph (e)(1) of 
this section, and all documents lacking a handwritten, wet signature 
(including all documents bearing an electronic signature) submitted 
through either the paper or electronic submission process, are 
considered to be copies of the original, signed document, and must be 
accompanied by a sworn certification or an official certification. 
Where an actual signature is not a handwritten or typewritten name, 
such as when an individual clicks a button on a Web site or application 
to agree to terms of use, the remitter must submit documentation 
evidencing the existence of the signature, which the Office will assess 
on a case-by-case basis to determine eligibility for recordation. For 
example, the remitter could append a database entry or confirmation 
email showing that a particular user agreed to the terms of use by 
clicking ``yes'' on a particular date.
    (2) Completeness. Each document submitted for recordation must be, 
and certified to be, complete by its terms, and include all referenced 
schedules, appendices, exhibits, addenda, or other material essential 
to understanding the copyright-related aspects of the document.
    (3) Legibility. Each document submitted for recordation must be, 
and certified to be, legible.
    (4) Redactions. The Office will accept and make available for 
public inspection redacted documents provided--
    (i) The redactions are limited to financial terms, trade secret 
information, social security or taxpayer-identification numbers, and 
financial account numbers, or the need for any redactions is justified 
to the Office in writing and approved by the Office;
    (ii) The blank or blocked-out portions of the document are labeled 
``redacted'' or the equivalent;
    (iii) Each portion of the document required by paragraph (d)(2) of 
this section is included; and
    (iv) Upon request, information regarding any redactions and/or an 
unredacted version of the document is provided to the Office for 
review.
    (5) English language requirement. The Office will accept and record 
non-English language documents and indexing information only if 
accompanied by an English translation signed by the individual making 
the translation. All translations will be made available for public 
inspection and may be redacted in accordance with paragraph (d)(4) of 
this section.
    (6) Titles of works and registration numbers. With regard to a work 
to which a document pertains, to provide constructive notice of the 
facts stated in the document under 17 U.S.C. 205(c), the document must 
include or be accompanied by the title and copyright registration 
number of such work. Documents that do not provide such information 
will still be recorded by the Office, but will not provide such 
constructive notice with regard to such work.
    (e) Submission procedure.
    (1) Electronic submission. The Copyright Office has established an 
electronic system for submission of documents for recordation, 
available through the Copyright Office's Web site. Remitters must 
follow all instructions provided by the Office for use of that system, 
including by providing all indexing information requested by the 
Copyright Office. A remitter using the electronic system must upload an 
electronic copy of the document in the format requested by the system, 
provide all of the information requested by the system, and use the 
system to pay the required fee. Any document submitted for recordation 
through the electronic system must be accompanied by a certification, 
which must be made through the system, stating that the uploaded copy 
of the document is a true, correct, complete, and legible copy of the 
original, and if redacted, is redacted in accordance with paragraph 
(d)(4) of this section.
    (2) Paper submission.
    (i) Process. A document may be submitted for recordation by sending 
it to the appropriate address in 37 CFR 201.1(b) or to such other 
address as the Office may specify, accompanied by a cover sheet, the 
proper fee, and, if applicable, any electronic title list. Absent 
special arrangement with the Office, the Office will not process the 
submission unless all of the items necessary for processing are 
received together.
    (ii) Cover sheet required. Paper submission of a document must 
include a completed Recordation Document Cover Sheet (Form DCS), 
available on the Copyright Office Web site. Form

[[Page 22779]]

DCS may be used to provide a sworn certification, if appropriate, and 
to certify that the submitted document is complete, legible, and if 
redacted, redacted in accordance with paragraph (d)(4) of this section.
    (iii) Electronic title list. In addition to identifying the works 
to which the document pertains in the paper submission, the remitting 
party may also submit an electronic list setting forth each such work. 
The electronic list will not be considered part of the recorded 
document, but will only be used by the Office for indexing purposes. 
Absent special arrangement with the Office, the electronic list must be 
included in the same package as the paper document to be recorded. The 
electronic list must be prepared and submitted to the Office in the 
manner specified by the Copyright Office in instructions it posts on 
its Web site. The Office may reject any document submitted for 
recordation that includes an improperly prepared electronic title list.
    (iv) Return receipt. For paper submissions, if a remitter includes 
two copies of a properly completed Form DCS indicating that a return 
receipt is requested, as well as a self-addressed, postage-paid 
envelope, the remitter will receive a date-stamped return receipt 
acknowledging the Copyright Office's receipt of the enclosed 
submission. The completed copies of Form DCS and the self-addressed, 
postage-paid envelope must be included in the same package as the 
submitted document. A return receipt confirms the Office's receipt of 
the submission as of the date indicated, but does not establish 
eligibility for, or the date of, recordation.
    (3) Remitter certification. Whether making an electronic or paper 
submission, the remitter must certify that he or she has appropriate 
authority to submit the document for recordation and that all 
information submitted to the Office by the remitter is true, accurate, 
and complete to the best of the remitter's knowledge.
    (f) Parties to bear consequences of inaccuracies. For purposes of 
indexing recorded documents in the Copyright Office's public catalog, 
the Office will rely on the information provided by the remitter via 
either the electronic recordation system or Form DCS (along with the 
accompanying electronic title list, if provided). The parties to the 
document remitted, including any successors in interest or third-party 
beneficiaries, will bear the consequences, if any, of any inaccuracies 
in the information the remitter has provided.
    (g) Public availability of recorded documents. Documents accepted 
for recordation after [EFFECTIVE DATE OF RULE] will be posted publicly 
on the internet as submitted, including with any redactions made by the 
remitter.
0
3. Revise Sec.  201.10(f) to read as follows:


Sec.  201.10  Notices of termination of transfers and licenses.

* * * * *
    (f) Recordation. A copy of a notice of termination shall be 
recorded in the Copyright Office as required by 17 U.S.C. 203(a)(4)(A), 
17 U.S.C. 304(c)(4)(A), or 17 U.S.C. 304(d)(1) if it meets the 
requirements of paragraph (f)(1), is submitted in compliance with 
paragraph (f)(2) of this section, and is accompanied by the fee 
prescribed by 37 CFR 201.3(c). The Office may reject any notice 
submitted for recordation that fails to comply with 17 U.S.C. 203(a), 
17 U.S.C. 304(c), 17 U.S.C. 304(d), or the requirements of this 
section.
    (1) Requirements. The following requirements must be met before a 
copy of a notice of termination may be recorded in the Copyright 
Office.
    (i) What must be submitted. (A) Copy of notice of termination. A 
copy of a notice of termination submitted for recordation must be, and 
certified to be, a complete and legible copy of the signed notice of 
termination as served. Where separate copies of the same notice were 
served on more than one grantee or successor in title, only one copy 
need be submitted for recordation.
    (B) Statement of service. The copy submitted for recordation must 
be accompanied by a statement setting forth the date on which the 
notice was served and the manner of service, unless such information is 
contained in the notice. In instances where service is made by first 
class mail, the date of service shall be the day the notice of 
termination was deposited with the United States Postal Service.
    (ii) Timeliness. (A) The Copyright Office will 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 
effective date of termination does not fall within the five-year period 
described in section 203(a)(3) or section 304(c)(3), as applicable, of 
title 17, United States Code; 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; or the date of recordation is 
after the effective date of termination.
    (B) If a notice of termination is untimely, the Office will offer 
to record the document as a ``document pertaining to copyright'' 
pursuant to 37 CFR 201.4, but the Office will not index the document as 
a notice of termination.
    (C) In any case where an author agreed, prior to January 1, 1978, 
to a grant of a transfer or license of rights in a work that was not 
created until on or after January 1, 1978, a notice of termination of a 
grant under section 203 of title 17 may be recorded if it recites, as 
the date of execution, the date on which the work was created.
    (2) Submission procedure.
    (i) Electronic submission. The Copyright Office has established an 
electronic system for submission of notices of termination for 
recordation, available through the Copyright Office's Web site. 
Remitters must follow all instructions provided by the Office for use 
of that system, including by providing all indexing information 
requested by the Copyright Office. A remitter using the electronic 
system must upload an electronic copy of the notice of termination in 
the format requested by the system, provide all of the information 
requested by the system, and use the system to complete the statement 
of service required under paragraph (f)(1)(i)(B) of this section and to 
pay the required fee. Any notice submitted for recordation through the 
electronic system must be accompanied by a certification, which must be 
made through the system, stating that the uploaded copy of the notice 
of termination is a true, correct, complete, and legible copy of the 
as-served signed notice.
    (ii) Paper submission. (A) Process. A paper copy of a notice of 
termination may be submitted for recordation by sending it to the 
appropriate address in 37 CFR 201.1(c) or to such other address as the 
Office may specify, accompanied by a cover sheet, the statement of 
service, and the proper fee.
    (B) Cover sheet required. Paper submission of a copy of a notice of 
termination must be accompanied by a completed Recordation Notice of 
Termination Cover Sheet (Form TCS), available on the Copyright Office 
Web site. Form TCS may be used to provide the statement of service and 
to certify that the submitted copy of the notice is a true, correct, 
complete, and legible copy of the as-served signed notice.
    (C) Return receipt. For paper submissions, if a remitter includes 
two copies of a properly completed Form TCS indicating that a return 
receipt is requested, as well as a self-addressed,

[[Page 22780]]

postage-paid envelope, the remitter will receive a date-stamped return 
receipt acknowledging the Copyright Office's receipt of the enclosed 
submission. The completed copies of Form TCS and the self-addressed, 
postage-paid envelope must be included in the same package as the 
submitted notice. A return receipt confirms the Office's receipt of the 
submission as of the date indicated, but does not establish eligibility 
for, or the date of, recordation.
    (iii) Remitter certification. Whether making an electronic or paper 
submission, the remitter must certify that he or she has appropriate 
authority to submit the notice for recordation and that all information 
submitted to the Office by the remitter is true, accurate, and complete 
to the best of the remitter's knowledge.
    (3) Date of recordation. The date of recordation is the date when 
all of the elements required for recordation, including the prescribed 
fee and, if required, the statement of service referred to in paragraph 
(f)(2)(ii) of this section, have been received in the Copyright Office. 
After recordation, the notice, including any accompanying statement, is 
returned to the sender with a certificate of recordation.
    (4) Effect of recordation. The fact that the Office has recorded 
the notice does not mean that it is otherwise sufficient under the law. 
Recordation of a notice of termination by the Copyright Office is 
without prejudice to any party claiming that the legal and formal 
requirements for effectuating termination (including service of the 
notice of termination) have not been met, including before a court of 
competent jurisdiction.
    (5) Parties to bear consequences of inaccuracies. For purposes of 
indexing recorded notices in the Copyright Office's public catalog, the 
Office will rely on the information provided by the remitter via either 
the electronic recordation system or Form TCS (along with any 
accompanying statement of service, if provided). The grantors and 
grantees associated with the notice of termination, including any 
successors in interest, will bear the consequences, if any, of any 
inaccuracies in the information the remitter has provided.

    Dated: May 10, 2017.
Sarang V. Damle,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2017-09810 Filed 5-17-17; 8:45 am]
 BILLING CODE 1410-30-P