Preregistration of Certain Unpublished Copyright Claims, 61905-61908 [05-21381]
Download as PDF
<![CDATA[
Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations
Paperwork Reduction Act
This regulation does not require an
information collection from 10 or more
parties and a submission under the
Paperwork Reduction Act is not
required. An OMB Form 83–I is not
required.
National Environmental Policy Act
As a companion document to the
NPRM, NPS issued the Personal
Watercraft Use Environmental
Assessment for Pictured Rocks National
Lakeshore and subsequent errata sheet.
The environmental assessment was
available for public review and
comment for the period August 1
through November 15, 2004. A Finding
of No Significant Impact (FONSI) was
signed on September 9, 2005. To request
a copy of these documents contact
Superintendent, Pictured Rocks
National Lakeshore, N8391 Sand Point
Road, P.O. Box 40, Munising, MI 49862–
0040. A copy of the Environmental
Assessment, errata sheet, and FONSI
may also be found at https://
www.nps.gov/piro/pwc.
Government-to-Government
Relationship With Tribes
In accordance with the President’s
memorandum of April 29, 1994,
‘‘Government to Government Relations
with Native American Tribal
Governments’’ (59 FR 22951) and 512
DM 2, we have evaluated potential
effects on Federally recognized Indian
tribes and have determined that there
are no potential effects.
Administrative Procedure Act
This final rule is effective upon
publication in the Federal Register. In
accordance with the Administrative
Procedure Act, specifically, 5 U.S.C.
553(d)(1), this rule, 36 CFR 7.32(d), is
exempt from the requirement of
publication of a substantive rule not less
than 30 days before its effective date.
As discussed in this preamble, the
final rule is a part 7 special regulation
for Pictured Rocks National Lakeshore
that relieves the restrictions imposed by
the general regulation, 36 CFR 3.24. The
general regulation, 36 CFR 3.24,
prohibits the use of PWC in units of the
national park system unless an
individual park area has designated the
use of PWC by adopting a part 7 special
regulation. The proposed rule was
published in the Federal Register (69
FR 51788) on August 23, 2004, with a
60-day period for notice and comment
consistent with the requirements of 5
U.S.C. 553(b). The Administrative
Procedure Act, pursuant to the
exception in paragraph (d)(1), waives
the section 553(d) 30-day waiting period
VerDate Aug<31>2005
16:58 Oct 26, 2005
Jkt 208001
when the published rule ‘‘grants or
recognizes an exemption or relieves a
restriction.’’ In this rule the NPS is
authorizing the use of PWCs, which is
otherwise prohibited by 36 CFR 3.24. As
a result, the 30-day waiting period
before the effective date does not apply
to Pictured Rocks National Lakeshore
final rule.
List of Subjects in 36 CFR Part 7
National Parks, Reporting and
recordkeeping requirements.
I For the reasons stated in the preamble,
the National Park Service amends 36
CFR part 7 as follows:
PART 7—SPECIAL REGULATIONS,
AREAS OF THE NATIONAL PARK
SYSTEM
1. The authority for part 7 continues
to read as follows:
I
Authority: 16 U.S.C. 1, 3, 9a, 460(q),
462(k); Sec. 7.96 also issued under DC Code
8–137 (1981) and DC Code 40–721 (1981).
2. Amend § 7.32 by adding paragraph
(d) to read as follows:
I
§ 7.32
Pictured Rocks National Lakeshore.
*
*
*
*
*
(d) Personal Watercraft (PWC). (1)
PWC are allowed on the waters within
Pictured Rocks National Lakeshore,
from the western boundary of the
lakeshore to the east end of Miners
Beach.
(2) PWC may be launched only from
a designated launch site at Sand Point.
(3) PWC users may beach their craft
only at Sand Point Beach and Miners
Beach.
(4) The Superintendent may
temporarily limit, restrict, or terminate
access to the areas designated for PWC
use after taking into consideration
public health and safety, natural and
cultural resource protection, and other
management activities and objectives.
Dated: October 19, 2005.
Paul Hoffman,
Deputy Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. 05–21426 Filed 10–26–05; 8:45 am]
BILLING CODE 4312–52–U
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 202
[Docket No. RM 2005–9]
Preregistration of Certain Unpublished
Copyright Claims
AGENCY:
Library of Congress, Copyright
Office.
PO 00000
Frm 00021
Fmt 4700
Sfmt 4700
ACTION:
61905
Interim regulation.
Pursuant to the Artists’ Rights
and Theft Prevention Act of 2005, the
Copyright Office is publishing an
interim regulation governing the
preregistration of unpublished works
that are being prepared for commercial
distribution in classes of works that the
Register of Copyrights has determined
have had a history of pre–release
infringement.
SUMMARY:
EFFECTIVE DATE:
November 15, 2005.
FOR FURTHER INFORMATION CONTACT:
David O. Carson, General Counsel, or
Charlotte Douglass, Principal Legal
Advisor, P.O. Box 70400, Washington,
DC 20024–0400, Telephone: (202) 707–
8380. Telefax: (202) 707–8366.
SUPPLEMENTARY INFORMATION: On April
27, 2005, President Bush signed the
Family Entertainment and Copyright
Act (‘‘FECA’’). Pub. L. No. 109–9, 119
Stat. 218. Title I of FECA is the Artists’
Rights and Theft Prevention Act of
2005, or ‘‘ART Act,’’ which among other
things addresses copyright infringement
of works committed prior to their
authorized commercial distribution, or
pre–release infringement. Section 104
directs the Copyright Office to conduct
a rulemaking proceeding to establish a
procedure for preregistration of
unpublished works that are being
prepared for commercial distribution.
Specifically, Section 104 provides
that ‘‘Not later than 180 days after the
date of enactment of this subsection, the
Register of Copyrights shall issue
regulations to establish procedures for
preregistration of a work that is being
prepared for commercial distribution
and has not been published.’’ 17 U.S. C.
408(f)(1). Preregistration is a new
procedure in the Copyright Office that
permits such an action to serve as a
place–holder for limited purposes –
notably where a copyright owner needs
to sue for infringement while a work is
still being prepared for commercial
release.
Congress also assigned the Register to
determine which works are eligible for
preregistration by directing that ‘‘the
regulations established under paragraph
(1) shall permit preregistration for any
work that is in a class of works that the
Register determines has had a history of
infringement prior to authorized
commercial distribution.’’ 17 U.S.C.
408(f)(2). Thus, falling in one or more of
the classes so determined by the
Register is a precondition to eligibility
for preregistration, and applications for
works that do not appear to fall within
these classes should not be entertained.
On July 22, 2005, the Register of
Copyrights initiated this rulemaking
E:\FR\FM\27OCR1.SGM
27OCR1
61906
Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations
proceeding pursuant to the ART Act’s
Section 408(f)(2) with publication of a
Notice of Proposed Rulemaking
(‘‘NOPR’’). 70 FR 42286. The Copyright
Office received ten initial comments
and five reply comments related to
proposals of one or more classes of
works or to general preregistration
procedure. The Office also received a
large number of comments in response
to a Supplemental Notice of Proposed
Rulemaking published August 4, 2005,
which sought information relating to
browser compatibility for those
expected to file the electronic
preregistration form. The Office made
this inquiry after learning that persons
attempting to use the Office’s new
online preregistration system, which
was still in development, may have
difficulties if they used web browsers
other then Microsoft Internet Explorer.
In order to preregister, applicants
must use the Office’s online
preregistration system, which will be
accessible from the Copyright Office’s
home page at https://www.copyright.gov.
While the Office is attempting to
address browser compatibility issues,
initially some applicants may
experience difficulties if they are using
browsers other than Internet Explorer.
For applicants who are unable to use the
online preregistration system,
information will be available on the
Copyright Office website on how to
preregister their works.
In order to comply with the ART Act’s
requirement that regulations to establish
procedures for preregistration be issued
by October 24, the Office is now issuing
the following interim regulations. It is
anticipated that final regulations, which
will be identical or very similar to the
interim regulations, will be published
within the next few weeks, along with
a more detailed discussion of the
comments received in response to the
notice of proposed rulemaking and of
the Office’s responses to those
comments. For further information in
the meantime, please refer to the July 22
notice of proposed rulemaking, as
supplemented by the following brief
explanation.
The Register’s determination today
adopts the liberalized classes named
and discussed below. The Register has
now carefully reviewed the record in
this rulemaking proceeding to
determine the classes of works that have
had a history of infringement prior to
authorized commercial distribution.
Based on that review of the comments,
it appears that the case has been made
for eligibility for preregistration of the
following classes of works upon their
fulfillment of the conditions specified in
37 CFR 202.16:
VerDate Aug<31>2005
16:58 Oct 26, 2005
Jkt 208001
(i) Motion pictures;
(ii) Sound recordings;
(iii) Musical compositions;
(iv) Literary works being prepared for
publication in book form;
(v) Computer programs (including
videogames); and
(vi) Advertising or marketing
photographs.
Many copyright owners urged that
much or all of the information provided
on applications for preregistration be
maintained as confidential records by
the Copyright Office. The Register
cannot accept the proposition that the
public should be denied access to the
preregistration records. As an office of
public record administering a system of
registration and recordation the purpose
of which is to provide information
regarding copyright ownership to the
public, the Copyright Office is not
disposed to receive and maintain
private information. The Office is
subject to the Freedom of Information
Act (‘‘FOIA’’), and it may or may not be
able to refuse release of records based
on applicable FOIA exceptions. To
preclude accessibility to information
related to a preregistration is
inconsistent with the very concept of
preregistration and registration systems.
The Office does not believe that the
alleged risks of making such
information public pose serious danger
to copyright owners. The information
required to preregister a work need not
be detailed and need not include
confidential information. To the extent
that a title is demanded, it is sufficient
to provide a ‘‘working title’’; moreover,
the risk of cybersquatting can easily be
mitigated if the copyright owner obtains
the applicable domain name prior to or
simultaneously with preregistration.
Information such as anticipated release
dates is not immutable; it should be
understood that when a preregistration
made at an early stage in a work’s
preparation states an anticipated date of
release, that date is at best a prediction
and is hardly a binding commitment.
Accordingly, the preregistration
record will be a public record, and
information from the preregistration
records will be available on the
Copyright Office Web site.1
The Office has abandoned its proposal
that, in order to be eligible for
preregistration, a work must already be
subject to a contract for distribution of
the work with an established distributor
of works. However, a person
preregistering a work must certify,
1 Due to the ongoing conversion of the online
copyright catalog to a Voyager database,
preregistration records will probably not be
available online until sometime in December.
PO 00000
Frm 00022
Fmt 4700
Sfmt 4700
under penalty of law, that the work is
in fact being prepared for commercial
distribution and that the applicant has
a reasonable expectation that the work
will be commercially distributed to the
public.
Commenters also asserted that
distribution is already extensively
occurring online, and in some genres,
exclusively so. Therefore, the Office will
not limit the coverage of this regulation
to work being prepared for commercial
distribution in physical format. Any
class of work that the Register
determines has had a history of pre–
release infringement may be
preregistered without regard to whether
the work is intended to be distributed in
physical formats or is intended for
online distribution.
Additional information relating to
preregistration may be found in the help
pages of the Office’s online
preregistration system, which will be
accessible from the Copyright Office’s
home page at https://www.copyright.gov.
The online preregistration system,
which is in its final stages of
preparation, will go online, and
preregistration will be available, on
November 15.
List of Subjects in 37 CFR Part 202
Claims, Copyright, Registration
requirements.
Interim Regulation
In consideration of the foregoing, the
Copyright Office issues this interim rule
amending part 202 of 37 CFR, chapter
II, in the manner set forth below:
I
PART 202 – PREREGISTRATION AND
REGISTRATION OF CLAIMS TO
COPYRIGHT
1. The authority citation for part 202
is revised to read as follows:
I
Authority: 17 U.S.C. 408(f), 702
2. The heading of Part 202 is revised
to read as set forth above.
I 3. A new § 202.16 is added to read as
follows:
I
§ 202.16
Preregistration of copyrights.
(a) General. This section prescribes
rules pertaining to the preregistration of
copyright claims in works eligible for
preregistration under Section 408(f) of
17 U.S.C.
(b) Definitions. For the purposes of
this section –
(1) A work is in a class of works that
the Register of Copyrights has
determined has had a history of
infringement prior to authorized
commercial release if it falls within one
of the following classes of works:
E:\FR\FM\27OCR1.SGM
27OCR1
Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations
(i) Motion pictures;
(ii) Sound recordings;
(iii) Musical compositions;
(iv) Literary works being prepared for
publication in book form;
(v) Computer programs (including
videogames); or
(vi) Advertising or marketing
photographs.
(2) A work is being prepared for
commercial distribution if:
(i) The claimant, in a statement
certified by the authorized
preregistering party, has a reasonable
expectation that the work will be
commercially distributed to the public;
and
(ii) Preparation of the work has
commenced and at least some portion of
the work has been fixed in a tangible
medium of expression, as follows:
(A) For a motion picture, filming of
the motion picture must have
commenced;
(B) For a sound recording, recording
of the sounds must have commenced;
(C) For a musical composition, at least
some of the musical composition must
have been fixed either in the form of
musical notation or in a copy or
phonorecord embodying a performance
of some or all of the work;
(D) For a literary work being prepared
for publication in book form, the actual
writing of the text of the work must
have commenced;
(E) For a computer program, at least
some of the computer code (either
source code or object code) must have
been fixed; and
(F) For an advertising or marketing
photograph, the photograph (or, in the
case of a group of photographs intended
for simultaneous publication, at least
one of the photographs) must have been
taken.
(3) A work eligible for preregistration
is a work that is:
(i) Unpublished;
(ii) Being prepared for commercial
distribution; and
(iii) In a class of works that the
Register of Copyrights has determined
has had a history of infringement prior
to authorized commercial release.
(c) Preregistration. (1) General. A
work eligible for preregistration may be
preregistered by submitting an
application and fee to the Copyright
Office pursuant to the requirements set
forth in this section.
(2) Works excluded. Works that are
not copyrightable subject matter under
title 17 of the U.S. Code may not be
preregistered in the Copyright Office.
(3) Application form. An application
for preregistration is made using
Electronic Form PRE. The application
must be submitted electronically on the
VerDate Aug<31>2005
16:58 Oct 26, 2005
Jkt 208001
Copyright Office website at: https://
www.copyright.gov.
(4) Preregistration as a single work.
For the purpose of preregistration on a
single application and upon payment of
a single preregistration fee, all
copyrightable elements that are
otherwise recognizable as self–
contained works, that are to be included
and first published in a single unit of
publication, and in which the copyright
claimant is the same, shall be
considered a single work eligible for
preregistration.
(5) Fee. (i) Amount. The filing fee for
preregistration is $100.
(ii) Method of payment. (A) Copyright
Office deposit account. The Copyright
Office maintains a system of Deposit
Accounts for the convenience of those
who frequently use its services and for
those who file applications
electronically. The system allows an
individual or firm to establish a Deposit
Account in the Copyright Office and to
make advance deposits in that account.
Deposit Account holders can charge
preregistration fees against the balance
in their accounts instead of using credit
cards for each request of service. For
information on Deposit Accounts,
please download a copy of Circular 5,
‘‘How to Open and Maintain a Deposit
Account in the Copyright Office,’’ or
write the Register of Copyrights,
Copyright Office, Library of Congress,
Washington, D.C. 20559.
(B) Credit cards, debit cards and
electronic funds transfer. The online
preregistration filing system will
provide options for payment by means
of credit or debit cards and by means of
electronic funds transfers. Applicants
will be redirected to the Department of
Treasury’s Pay.gov website to make
payments with credit or debit cards, or
directly from their bank accounts by
means of ACH debit transactions.
(C) No refunds. The preregistration
filing fee is not refundable.
(6) Description. No deposit of the
work being preregistered should be
submitted with an application for
preregistration. The preregistration
applicant should submit a detailed
description, of not more than 2,000
characters (approximately 330 words),
of the work as part of the application.
The description should be based on
information available at the time of the
application sufficient to reasonably
identify the work. Generally, the
Copyright Office will not review
descriptions for adequacy, but in an
action for infringement of a
preregistered work, the court may
evaluate the adequacy of the description
to determine whether the preregistration
actually describes the work that is
PO 00000
Frm 00023
Fmt 4700
Sfmt 4700
61907
alleged to be infringed, taking into
account the information available to the
applicant at the time of preregistration
and taking into account the legitimate
interest of the applicant in protecting
confidential information.
(i) For motion pictures, such a
description should include the
following information to the extent
known at the time of filing: the subject
matter, a summary or outline, the
director, the primary actors, the
principal location of filming, and any
other information that would assist in
identifying the particular work being
preregistered.
(ii) For sound recordings, the
identifying description should include
the following information to the extent
known at the time of filing: the subject
matter of the work or works recorded,
the performer or performing group, the
genre of the work recorded (e.g.,
classical, pop, musical comedy, soft
rock, heavy metal, gospel, rap, hip–hop,
blues, jazz), the titles of the musical
compositions being recorded, the
principal recording location, the
composer(s) of the recorded musical
compositions embodied on the sound
recording, and any other information
that would assist in identifying the
particular work being preregistered.
(iii) For musical compositions, the
identifying description should include
the following information to the extent
known at the time of filing: the subject
matter of the lyrics, if any, the genre of
the work (for example, classical, pop,
musical comedy, soft rock, heavy metal,
gospel, rap, hip–hop, blues, jazz), the
performer, principal recording location,
record label, motion picture, or other
information relating to any sound
recordings or motion pictures that are
being prepared for commercial
distribution and will include the
musical composition, and any other
detail or characteristic that may assist in
identifying the particular musical
composition.
(iv) For literary works in book form,
the identifying description should
include to the extent known at the time
of filing: the genre of the book, e.g.,
biography, novel, history, etc., and
should include a brief summary of the
work including, the subject matter (e.g.,
a biography of President Bush, a history
of the war in Iraq, a fantasy novel); a
description (where applicable) of the
plot, primary characters, events, or other
key elements of the content of the work;
and any other salient characteristics of
the book, e.g., whether it is a later
edition or revision of a previous work,
as well as any other detail which may
assist in identifying the literary work in
book form.
E:\FR\FM\27OCR1.SGM
27OCR1
61908
Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations
(v) For computer programs (including
videogames), the identifying description
should include to the extent known at
the time of filing, the nature, purpose
and function of the computer program,
including the programming language in
which it is written, any particular
organization or structure in which the
program has been created; the form in
which it is expected to be published,
e.g. as an online–only product; whether
there have been previous versions (and
identification of such previous
versions); the identities of persons
involved in the creation of the computer
program; and, if the work is a
videogame, also describe the subject
matter of the videogame and the overall
object, goal or purpose of the game, its
characters, if any, and the general
setting and surrounding found in the
game.
(vi) For advertising or marketing
photographs, the description should
include the subject matter depicted in
the photograph or photographs,
including information such as the
particular product, event, public figure,
or other item or occurrence which the
photograph is intended to advertise or
market. To the extent possible and
applicable, the description for
photographs should give additional
details which will assist in identifying
the particular photographs, such as the
party for whom such advertising
photographs are taken; the approximate
time periods during which the
photographs are taken; the approximate
number of photos which may be
included in the grouping; any events
associated with the photographs; and
the location and physical setting or
surrounding depicted in the
photographs. The description may also
explain the general presentation, e.g.,
the lighting, background scenery,
positioning of elements of the subject
matter as it is seen in the photographs,
and should provide any locations and
events, if applicable, associated with the
photographs.
(7) Review of preregistration
information. The Copyright Office will
conduct a limited review of applications
for preregistration, in order to ascertain
whether the application describes a
work that is in a class of works that the
Register of Copyrights has determined
has had a history of infringement prior
to authorized commercial release.
However, a work will not be
preregistered unless an applicant has
provided all of the information
requested on the application and has
certified that all of the information
provided on the application is correct to
the best of the applicant’s knowledge.
VerDate Aug<31>2005
16:58 Oct 26, 2005
Jkt 208001
(8) Certification. The person
submitting an application for
preregistration must certify on the
application that he or she is the author,
copyright claimant, or owner of
exclusive rights, or the authorized agent
of the author, copyright claimant, or
owner of exclusive rights, of the work
submitted for this preregistration; that
the information given in this application
is correct to the best of his or her
knowledge; that the work is being
prepared for commercial distribution;
and that he or she has a reasonable
expectation that the work will be
commercially distributed to the public.
(9) Effective date of preregistration.
The effective date of a preregistration is
the day on which an application and fee
for preregistration of a work, which the
Copyright Office later notifies the
claimant has been preregistered or
which a court of competent jurisdiction
has concluded was acceptable for
preregistration, have been received in
the Copyright Office.
(10) Notification of preregistration.
Upon completion of the preregistration,
the Copyright Office will provide the
claimant official notification by email of
the preregistration.
(11) Certification of preregistation. A
certified copy of the official notification
may be obtained in physical form from
the Certification and Documents Section
of the Information and Reference
Division at the address stated in
§ 201.1(a)(3) of this chapter.
(12) Public record of preregistration.
The preregistration record will also be
available to the public on the Copyright
Office website, https://
www.copyright.gov.
(13) Effect of preregistration.
Preregistration of a work offers certain
advantages to a copyright owner
pursuant to 17 U.S.C. 408(f), 411 and
412. However, preregistration of a work
does not constitute prima facie evidence
of the validity of the copyright or of the
facts stated in the application for
preregistration or in the preregistration
record. The fact that a work has been
preregistered does not create any
presumption that the Copyright Office
will register the work upon submission
of an application for registration.
(14) Petition for recognition of a new
class of works. At any time an interested
party may petition the Register of
Copyrights for a determination as to
whether a particular class of works has
had a history of copyright infringement
prior to authorized release that would
justify inclusion of that class of works
among the classes of works eligible for
preregistration.
PO 00000
Frm 00024
Fmt 4700
Sfmt 4700
Dated: October 19, 2005
Marybeth Peters,
Register of Copyrights.
Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 05–21381 Filed 10–26–05; 8:45 am]
BILLING CODE 1410–30–S
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
49 CFR Part 571
[Docket No. NHTSA 2005–21048]
Federal Motor Vehicle Safety
Standards
National Highway Traffic
Safety Administration (NHTSA), DOT.
ACTION: Denial of petition for
rulemaking.
AGENCY:
SUMMARY: This document denies a
petition for rulemaking submitted by
Honda Motor Co., Ltd. (Honda), to
amend Federal Motor Vehicle Safety
Standard (FMVSS) No. 213, ‘‘Child
restraint systems.’’ Honda requested that
FMVSS No. 213 be amended to limit the
weight of all child restraint systems
used with the 3-year-old dummy. Honda
stated that such an amendment would
assure the proper operation of weightbased occupant detection systems used
to meet the air bag suppression
requirements of FMVSS No. 208,
‘‘Occupant crash protection.’’
FOR FURTHER INFORMATION CONTACT:
For Non-Legal Issues: Mr. Tewabe
Asebe, Office of Crashworthiness
Standards, National Highway Traffic
Safety Administration, 400 Seventh
Street, SW., Washington, DC 20590,
Telephone: (202) 366–2365.
For Legal Issues: Mr. Chris Calamita,
Office of Chief Counsel, National
Highway Traffic Safety Administration,
400 Seventh Street, SW., Washington,
DC 20590, Telephone: (202) 366–2992,
Facsimile: (202) 366–3820.
SUPPLEMENTARY INFORMATION:
I. Background
On May 12, 2000, NHTSA issued a
final rule for advanced air bags,
amending FMVSS No. 208 to, among
other things, minimize injuries to small
adults and young children due to air bag
deployment (65 FR 30680). To address
the risk air bags pose to young children
in child restraint systems, the agency
amended FMVSS No. 208 to include a
number of alternative tests, one of
which requires the front passenger air
E:\FR\FM\27OCR1.SGM
27OCR1
]]>Agencies
[Federal Register Volume 70, Number 207 (Thursday, October 27, 2005)]
[Rules and Regulations]
[Pages 61905-61908]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-21381]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 202
[Docket No. RM 2005-9]
Preregistration of Certain Unpublished Copyright Claims
AGENCY: Library of Congress, Copyright Office.
ACTION: Interim regulation.
-----------------------------------------------------------------------
SUMMARY: Pursuant to the Artists' Rights and Theft Prevention Act of
2005, the Copyright Office is publishing an interim regulation
governing the preregistration of unpublished works that are being
prepared for commercial distribution in classes of works that the
Register of Copyrights has determined have had a history of pre-release
infringement.
EFFECTIVE DATE: November 15, 2005.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
Charlotte Douglass, Principal Legal Advisor, P.O. Box 70400,
Washington, DC 20024-0400, Telephone: (202) 707-8380. Telefax: (202)
707-8366.
SUPPLEMENTARY INFORMATION: On April 27, 2005, President Bush signed the
Family Entertainment and Copyright Act (``FECA''). Pub. L. No. 109-9,
119 Stat. 218. Title I of FECA is the Artists' Rights and Theft
Prevention Act of 2005, or ``ART Act,'' which among other things
addresses copyright infringement of works committed prior to their
authorized commercial distribution, or pre-release infringement.
Section 104 directs the Copyright Office to conduct a rulemaking
proceeding to establish a procedure for preregistration of unpublished
works that are being prepared for commercial distribution.
Specifically, Section 104 provides that ``Not later than 180 days
after the date of enactment of this subsection, the Register of
Copyrights shall issue regulations to establish procedures for
preregistration of a work that is being prepared for commercial
distribution and has not been published.'' 17 U.S. C. 408(f)(1).
Preregistration is a new procedure in the Copyright Office that permits
such an action to serve as a place-holder for limited purposes -
notably where a copyright owner needs to sue for infringement while a
work is still being prepared for commercial release.
Congress also assigned the Register to determine which works are
eligible for preregistration by directing that ``the regulations
established under paragraph (1) shall permit preregistration for any
work that is in a class of works that the Register determines has had a
history of infringement prior to authorized commercial distribution.''
17 U.S.C. 408(f)(2). Thus, falling in one or more of the classes so
determined by the Register is a precondition to eligibility for
preregistration, and applications for works that do not appear to fall
within these classes should not be entertained.
On July 22, 2005, the Register of Copyrights initiated this
rulemaking
[[Page 61906]]
proceeding pursuant to the ART Act's Section 408(f)(2) with publication
of a Notice of Proposed Rulemaking (``NOPR''). 70 FR 42286. The
Copyright Office received ten initial comments and five reply comments
related to proposals of one or more classes of works or to general
preregistration procedure. The Office also received a large number of
comments in response to a Supplemental Notice of Proposed Rulemaking
published August 4, 2005, which sought information relating to browser
compatibility for those expected to file the electronic preregistration
form. The Office made this inquiry after learning that persons
attempting to use the Office's new online preregistration system, which
was still in development, may have difficulties if they used web
browsers other then Microsoft Internet Explorer.
In order to preregister, applicants must use the Office's online
preregistration system, which will be accessible from the Copyright
Office's home page at https://www.copyright.gov. While the Office is
attempting to address browser compatibility issues, initially some
applicants may experience difficulties if they are using browsers other
than Internet Explorer. For applicants who are unable to use the online
preregistration system, information will be available on the Copyright
Office website on how to preregister their works.
In order to comply with the ART Act's requirement that regulations
to establish procedures for preregistration be issued by October 24,
the Office is now issuing the following interim regulations. It is
anticipated that final regulations, which will be identical or very
similar to the interim regulations, will be published within the next
few weeks, along with a more detailed discussion of the comments
received in response to the notice of proposed rulemaking and of the
Office's responses to those comments. For further information in the
meantime, please refer to the July 22 notice of proposed rulemaking, as
supplemented by the following brief explanation.
The Register's determination today adopts the liberalized classes
named and discussed below. The Register has now carefully reviewed the
record in this rulemaking proceeding to determine the classes of works
that have had a history of infringement prior to authorized commercial
distribution. Based on that review of the comments, it appears that the
case has been made for eligibility for preregistration of the following
classes of works upon their fulfillment of the conditions specified in
37 CFR 202.16:
(i) Motion pictures;
(ii) Sound recordings;
(iii) Musical compositions;
(iv) Literary works being prepared for publication in book form;
(v) Computer programs (including videogames); and
(vi) Advertising or marketing photographs.
Many copyright owners urged that much or all of the information
provided on applications for preregistration be maintained as
confidential records by the Copyright Office. The Register cannot
accept the proposition that the public should be denied access to the
preregistration records. As an office of public record administering a
system of registration and recordation the purpose of which is to
provide information regarding copyright ownership to the public, the
Copyright Office is not disposed to receive and maintain private
information. The Office is subject to the Freedom of Information Act
(``FOIA''), and it may or may not be able to refuse release of records
based on applicable FOIA exceptions. To preclude accessibility to
information related to a preregistration is inconsistent with the very
concept of preregistration and registration systems.
The Office does not believe that the alleged risks of making such
information public pose serious danger to copyright owners. The
information required to preregister a work need not be detailed and
need not include confidential information. To the extent that a title
is demanded, it is sufficient to provide a ``working title''; moreover,
the risk of cybersquatting can easily be mitigated if the copyright
owner obtains the applicable domain name prior to or simultaneously
with preregistration. Information such as anticipated release dates is
not immutable; it should be understood that when a preregistration made
at an early stage in a work's preparation states an anticipated date of
release, that date is at best a prediction and is hardly a binding
commitment.
Accordingly, the preregistration record will be a public record,
and information from the preregistration records will be available on
the Copyright Office Web site.\1\
---------------------------------------------------------------------------
\1\ Due to the ongoing conversion of the online copyright
catalog to a Voyager database, preregistration records will probably
not be available online until sometime in December.
---------------------------------------------------------------------------
The Office has abandoned its proposal that, in order to be eligible
for preregistration, a work must already be subject to a contract for
distribution of the work with an established distributor of works.
However, a person preregistering a work must certify, under penalty of
law, that the work is in fact being prepared for commercial
distribution and that the applicant has a reasonable expectation that
the work will be commercially distributed to the public.
Commenters also asserted that distribution is already extensively
occurring online, and in some genres, exclusively so. Therefore, the
Office will not limit the coverage of this regulation to work being
prepared for commercial distribution in physical format. Any class of
work that the Register determines has had a history of pre-release
infringement may be preregistered without regard to whether the work is
intended to be distributed in physical formats or is intended for
online distribution.
Additional information relating to preregistration may be found in
the help pages of the Office's online preregistration system, which
will be accessible from the Copyright Office's home page at https://
www.copyright.gov. The online preregistration system, which is in its
final stages of preparation, will go online, and preregistration will
be available, on November 15.
List of Subjects in 37 CFR Part 202
Claims, Copyright, Registration requirements.
Interim Regulation
0
In consideration of the foregoing, the Copyright Office issues this
interim rule amending part 202 of 37 CFR, chapter II, in the manner set
forth below:
PART 202 - PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT
0
1. The authority citation for part 202 is revised to read as follows:
Authority: 17 U.S.C. 408(f), 702
0
2. The heading of Part 202 is revised to read as set forth above.
0
3. A new Sec. 202.16 is added to read as follows:
Sec. 202.16 Preregistration of copyrights.
(a) General. This section prescribes rules pertaining to the
preregistration of copyright claims in works eligible for
preregistration under Section 408(f) of 17 U.S.C.
(b) Definitions. For the purposes of this section -
(1) A work is in a class of works that the Register of Copyrights
has determined has had a history of infringement prior to authorized
commercial release if it falls within one of the following classes of
works:
[[Page 61907]]
(i) Motion pictures;
(ii) Sound recordings;
(iii) Musical compositions;
(iv) Literary works being prepared for publication in book form;
(v) Computer programs (including videogames); or
(vi) Advertising or marketing photographs.
(2) A work is being prepared for commercial distribution if:
(i) The claimant, in a statement certified by the authorized
preregistering party, has a reasonable expectation that the work will
be commercially distributed to the public; and
(ii) Preparation of the work has commenced and at least some
portion of the work has been fixed in a tangible medium of expression,
as follows:
(A) For a motion picture, filming of the motion picture must have
commenced;
(B) For a sound recording, recording of the sounds must have
commenced;
(C) For a musical composition, at least some of the musical
composition must have been fixed either in the form of musical notation
or in a copy or phonorecord embodying a performance of some or all of
the work;
(D) For a literary work being prepared for publication in book
form, the actual writing of the text of the work must have commenced;
(E) For a computer program, at least some of the computer code
(either source code or object code) must have been fixed; and
(F) For an advertising or marketing photograph, the photograph (or,
in the case of a group of photographs intended for simultaneous
publication, at least one of the photographs) must have been taken.
(3) A work eligible for preregistration is a work that is:
(i) Unpublished;
(ii) Being prepared for commercial distribution; and
(iii) In a class of works that the Register of Copyrights has
determined has had a history of infringement prior to authorized
commercial release.
(c) Preregistration. (1) General. A work eligible for
preregistration may be preregistered by submitting an application and
fee to the Copyright Office pursuant to the requirements set forth in
this section.
(2) Works excluded. Works that are not copyrightable subject matter
under title 17 of the U.S. Code may not be preregistered in the
Copyright Office.
(3) Application form. An application for preregistration is made
using Electronic Form PRE. The application must be submitted
electronically on the Copyright Office website at: https://
www.copyright.gov.
(4) Preregistration as a single work. For the purpose of
preregistration on a single application and upon payment of a single
preregistration fee, all copyrightable elements that are otherwise
recognizable as self-contained works, that are to be included and first
published in a single unit of publication, and in which the copyright
claimant is the same, shall be considered a single work eligible for
preregistration.
(5) Fee. (i) Amount. The filing fee for preregistration is $100.
(ii) Method of payment. (A) Copyright Office deposit account. The
Copyright Office maintains a system of Deposit Accounts for the
convenience of those who frequently use its services and for those who
file applications electronically. The system allows an individual or
firm to establish a Deposit Account in the Copyright Office and to make
advance deposits in that account. Deposit Account holders can charge
preregistration fees against the balance in their accounts instead of
using credit cards for each request of service. For information on
Deposit Accounts, please download a copy of Circular 5, ``How to Open
and Maintain a Deposit Account in the Copyright Office,'' or write the
Register of Copyrights, Copyright Office, Library of Congress,
Washington, D.C. 20559.
(B) Credit cards, debit cards and electronic funds transfer. The
online preregistration filing system will provide options for payment
by means of credit or debit cards and by means of electronic funds
transfers. Applicants will be redirected to the Department of
Treasury's Pay.gov website to make payments with credit or debit cards,
or directly from their bank accounts by means of ACH debit
transactions.
(C) No refunds. The preregistration filing fee is not refundable.
(6) Description. No deposit of the work being preregistered should
be submitted with an application for preregistration. The
preregistration applicant should submit a detailed description, of not
more than 2,000 characters (approximately 330 words), of the work as
part of the application. The description should be based on information
available at the time of the application sufficient to reasonably
identify the work. Generally, the Copyright Office will not review
descriptions for adequacy, but in an action for infringement of a
preregistered work, the court may evaluate the adequacy of the
description to determine whether the preregistration actually describes
the work that is alleged to be infringed, taking into account the
information available to the applicant at the time of preregistration
and taking into account the legitimate interest of the applicant in
protecting confidential information.
(i) For motion pictures, such a description should include the
following information to the extent known at the time of filing: the
subject matter, a summary or outline, the director, the primary actors,
the principal location of filming, and any other information that would
assist in identifying the particular work being preregistered.
(ii) For sound recordings, the identifying description should
include the following information to the extent known at the time of
filing: the subject matter of the work or works recorded, the performer
or performing group, the genre of the work recorded (e.g., classical,
pop, musical comedy, soft rock, heavy metal, gospel, rap, hip-hop,
blues, jazz), the titles of the musical compositions being recorded,
the principal recording location, the composer(s) of the recorded
musical compositions embodied on the sound recording, and any other
information that would assist in identifying the particular work being
preregistered.
(iii) For musical compositions, the identifying description should
include the following information to the extent known at the time of
filing: the subject matter of the lyrics, if any, the genre of the work
(for example, classical, pop, musical comedy, soft rock, heavy metal,
gospel, rap, hip-hop, blues, jazz), the performer, principal recording
location, record label, motion picture, or other information relating
to any sound recordings or motion pictures that are being prepared for
commercial distribution and will include the musical composition, and
any other detail or characteristic that may assist in identifying the
particular musical composition.
(iv) For literary works in book form, the identifying description
should include to the extent known at the time of filing: the genre of
the book, e.g., biography, novel, history, etc., and should include a
brief summary of the work including, the subject matter (e.g., a
biography of President Bush, a history of the war in Iraq, a fantasy
novel); a description (where applicable) of the plot, primary
characters, events, or other key elements of the content of the work;
and any other salient characteristics of the book, e.g., whether it is
a later edition or revision of a previous work, as well as any other
detail which may assist in identifying the literary work in book form.
[[Page 61908]]
(v) For computer programs (including videogames), the identifying
description should include to the extent known at the time of filing,
the nature, purpose and function of the computer program, including the
programming language in which it is written, any particular
organization or structure in which the program has been created; the
form in which it is expected to be published, e.g. as an online-only
product; whether there have been previous versions (and identification
of such previous versions); the identities of persons involved in the
creation of the computer program; and, if the work is a videogame, also
describe the subject matter of the videogame and the overall object,
goal or purpose of the game, its characters, if any, and the general
setting and surrounding found in the game.
(vi) For advertising or marketing photographs, the description
should include the subject matter depicted in the photograph or
photographs, including information such as the particular product,
event, public figure, or other item or occurrence which the photograph
is intended to advertise or market. To the extent possible and
applicable, the description for photographs should give additional
details which will assist in identifying the particular photographs,
such as the party for whom such advertising photographs are taken; the
approximate time periods during which the photographs are taken; the
approximate number of photos which may be included in the grouping; any
events associated with the photographs; and the location and physical
setting or surrounding depicted in the photographs. The description may
also explain the general presentation, e.g., the lighting, background
scenery, positioning of elements of the subject matter as it is seen in
the photographs, and should provide any locations and events, if
applicable, associated with the photographs.
(7) Review of preregistration information. The Copyright Office
will conduct a limited review of applications for preregistration, in
order to ascertain whether the application describes a work that is in
a class of works that the Register of Copyrights has determined has had
a history of infringement prior to authorized commercial release.
However, a work will not be preregistered unless an applicant has
provided all of the information requested on the application and has
certified that all of the information provided on the application is
correct to the best of the applicant's knowledge.
(8) Certification. The person submitting an application for
preregistration must certify on the application that he or she is the
author, copyright claimant, or owner of exclusive rights, or the
authorized agent of the author, copyright claimant, or owner of
exclusive rights, of the work submitted for this preregistration; that
the information given in this application is correct to the best of his
or her knowledge; that the work is being prepared for commercial
distribution; and that he or she has a reasonable expectation that the
work will be commercially distributed to the public.
(9) Effective date of preregistration. The effective date of a
preregistration is the day on which an application and fee for
preregistration of a work, which the Copyright Office later notifies
the claimant has been preregistered or which a court of competent
jurisdiction has concluded was acceptable for preregistration, have
been received in the Copyright Office.
(10) Notification of preregistration. Upon completion of the
preregistration, the Copyright Office will provide the claimant
official notification by email of the preregistration.
(11) Certification of preregistation. A certified copy of the
official notification may be obtained in physical form from the
Certification and Documents Section of the Information and Reference
Division at the address stated in Sec. 201.1(a)(3) of this chapter.
(12) Public record of preregistration. The preregistration record
will also be available to the public on the Copyright Office website,
https://www.copyright.gov.
(13) Effect of preregistration. Preregistration of a work offers
certain advantages to a copyright owner pursuant to 17 U.S.C. 408(f),
411 and 412. However, preregistration of a work does not constitute
prima facie evidence of the validity of the copyright or of the facts
stated in the application for preregistration or in the preregistration
record. The fact that a work has been preregistered does not create any
presumption that the Copyright Office will register the work upon
submission of an application for registration.
(14) Petition for recognition of a new class of works. At any time
an interested party may petition the Register of Copyrights for a
determination as to whether a particular class of works has had a
history of copyright infringement prior to authorized release that
would justify inclusion of that class of works among the classes of
works eligible for preregistration.
Dated: October 19, 2005
Marybeth Peters,
Register of Copyrights.
Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 05-21381 Filed 10-26-05; 8:45 am]
BILLING CODE 1410-30-S
