Gap in Termination Provisions, 72771-72773 [2010-29743]
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Federal Register / Vol. 75, No. 227 / Friday, November 26, 2010 / Proposed Rules
likely take place simultaneously with
engagement and planning; operate
across the full spectrum of strategic,
operational, and tactical levels; and
occur internally among DoD
Components and externally with
supported civil authorities and
qualifying entities.
(A) Policy coordination between the
Department of Defense and other
Federal departments is the
responsibility of ASD(HD&ASA). Other
DoD Components may send
representatives to these meetings with
the prior concurrence of
ASD(HD&ASA). Standing Departmentallevel special events coordination
meetings include:
(1) USSS-led NSSE Working Group.
(2) DHS-led Special Events Working
Group.
(3) Department of State, Bureau of
Diplomatic Security-led International
Sporting Event Group.
(B) Coordination Below the Strategic
Level. (1) Coordination within the
Department is led by the ASD(HD&ASA)
and is facilitated by the CJCS for the
Combatant Commands and other Joint
Commands and by other DoD
Component Heads for their constituent
elements.
(2) The CJCS will work with the
Service Chiefs, Chief NGB, and the
heads of DoD Components when subject
matter expertise is needed for the event
organizers. This will be based upon
location and other criteria, as needed.
(ii) Inputs to the DHS-produced
Integrated Federal Support
Overview(IFSO) will be solicited by the
CJCS and sent to the ASD(HD&ASA) for
consolidation and deconfliction prior to
final submission to DHS. DoD
Component Heads not tasked by the
Joint Staff will submit their input
directly to ASD(HD&ASA).
(iii) RFAs for DoD support will adhere
to the following:
(A) An RFA for DoD support to a
special event may be made by Federal,
State, or local civil authorities, or by
other qualifying entities.
(B) RFAs will be in writing and
addressed to the Secretary of Defense,
the Deputy Secretary of Defense or the
Executive Secretary of the Department
of Defense, 1000 Defense, Pentagon,
Washington, DC 20301–1000.
Components who receive RFAs directly
from the requestor will immediately
forward them to the Executive Secretary
for disposition, distribution, and
tracking.
(C) The Executive Secretary will
determine who within the Department
has the lead action on the RFA. At a
minimum, the RFA will be distributed
to the ASD(HD&ASA) and the CJCS. If
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the RFA is for a single capability that a
Component is the OPR or for which has
Executive Agency. The Executive
Secretary will send the RFA to that
Component for action, and will provide
an information copy to the
ASD(HD&ASA) and the CJCS.
(D) Vetting of RFAs will be in
accordance with DoD’s Global Force
Management process and consistent
with criteria published in 32 CFR part
185.
(E) Unless directed otherwise, the
Executive Secretary will communicate
the Department’s decision on support to
a special event to the requesting
authorities.
(4) Execution. Execution of DoD
support to special events is a shared
responsibility. The scope and
magnitude of the support being
provided will determine the OPR and
level of execution.
(i) When joint military forces or
centralized command and control of
DoD support to a special event are
anticipated or required, a Combatant
Commander shall be identified as the
Supported Commander in a properly
approved order issued by the CJCS. The
designated Combatant Command shall
be the focal point for execution of DoD
support to that special event with other
DoD Components in support. Reporting
requirements shall be in accordance
with the properly approved order issued
by the CJCS and standing business
practices.
(ii) When there are no military forces
required and no need for centralized
command and control, DoD support to
special events shall be executed by the
CJCS or the head of a DoD Component,
as designated in a properly approved
order or message issued by the CJCS.
Oversight of DoD support will be
provided by the ASD(HD&ASA).
(5) Recovery. (i) Durable, non-unit
equipment, procured by the Department
of Defense to support a special event,
shall be retained by the CJCS for use
during future events in accordance with
§ 183.5(h)(7) of this part.
(ii) An After-Action Report shall be
produced by the Combatant Command
or OPR and sent to ASD(HD&ASA) and
the CJCS within 60 days of completion
of the event.
Dated: November 15, 2010.
Patricia L. Toppings,
OSD Federal Register Liaison Officer,
Department of Defense.
[FR Doc. 2010–29764 Filed 11–24–10; 8:45 am]
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72771
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2010–5]
Gap in Termination Provisions
Copyright Office, Library of
Congress.
ACTION: Notice of proposed rulemaking;
request for comments.
AGENCY:
The Copyright Office is
proposing to amend its regulations
governing notices of termination of
certain grants of transfers and licenses
of copyright under section 203 of the
Copyright Act of 1976. The amendments
are intended to clarify the recordation
practices of the Copyright Office
regarding the content of section 203
notices of termination and the
timeliness of their service and
recordation, including a clarification
that the Office will accept for
recordation under section 203 a notice
of termination of a grant agreed to before
January 1, 1978 as long as the work that
is the subject of the grant was not
created before 1978. Whether such
notices of termination fall within the
scope of section 203 will ultimately be
a matter to be resolved by the courts.
DATES: Comments on the Notice of
Proposed Rulemaking and Requests for
Comments are due on or before
December 27, 2010.
ADDRESSES: The Copyright Office
strongly prefers that comments be
submitted electronically. A comment
page containing a comment form is
posted on the Copyright Office Web site
at https://www.copyright.gov/docs/
termination. The Web site interface
requires submitters to complete a form
specifying name and organization, as
applicable, and to upload comments as
an attachment via a browse button. To
meet accessibility standards, all
comments must be uploaded in a single
file in either the Adobe Portable
Document File (PDF) format that
contains searchable, accessible text (not
an image); Microsoft Word;
WordPerfect; Rich Text Format (RTF); or
ASCII text file format (not a scanned
document). The maximum file size is 6
megabytes (MB). The name of the
submitter and organization should
appear on both the form and the face of
the comments. All comments will be
posted publicly on the Copyright Office
Web site exactly as they are received,
along with names and organizations. If
electronic submission of comments is
not feasible, please contact the
SUMMARY:
E:\FR\FM\26NOP1.SGM
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72772
Federal Register / Vol. 75, No. 227 / Friday, November 26, 2010 / Proposed Rules
Copyright Office at 202–707–8125 for
special instructions.
FOR FURTHER INFORMATION CONTACT:
Amanda Wilson Denton, Counsel for
Policy and International Affairs, by
telephone at 202–707–8125 or by
electronic mail at amwi@loc.gov.
SUPPLEMENTARY INFORMATION:
srobinson on DSKHWCL6B1PROD with PROPOSALS
Background
The Copyright Act gives authors (and
some heirs, beneficiaries and
representatives who are specified by
statute) the right to terminate certain
grants of transfers or licenses within the
time frames set forth in the statute and
subject to the execution of certain
conditions precedent. Termination
rights (also referred to as ‘‘recapture
rights’’) are equitable accommodations
under the law. They allow authors or
their heirs a second opportunity to share
in the economic success of their works.
Codified in sections 304(c), 304(d) and
203 of Title 17, respectively, they
encompass grants made before as well
as after January 1, 1978 (the effective
date of the 1976 Copyright Act).
However, the provisions do not apply to
copyrights in works made for hire or
grants made by will. Sections 304(c) and
304(d) establish termination rights for
works subject to grants of transfers or
licenses of copyright (or of any right
under a copyright) made before January
1, 1978, the effective date of the 1976
Copyright Act. Section 203, which is the
subject of this proposed rulemaking,
establishes termination rights for works
subject to grants of transfers or licenses
executed by the author on or after the
effective date of the 1976 Copyright Act.
This proposed rulemaking is intended
to address a narrow fact pattern that was
the subject of a notice of inquiry after
some authors and their representatives
brought concerns to the attention of the
Copyright Office and some
Congressional Offices. In a Federal
Register Notice dated March 29, 2010
(75 FR 15390), the Office sought
comments as to whether or how the
termination provisions apply in
circumstances where a grant was agreed
to prior to January 1, 1978, but the work
in question was created on or after
January 1, 1978. In response to the
Notice of Inquiry, the Copyright Office
received sixteen initial comments and
nine reply comments. These comments
are available online on the Copyright
Office Web site, at https://
www.copyright.gov/docs/termination/.
Several of those commenters took the
position that the termination right
provided in section 203 of the Copyright
Act should be available under the
circumstances in question. They based
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Jkt 223001
this position on a number of legal and
policy arguments, prominent among
which was the argument that a grant is
not fully executed under the law until
the relevant work has been created.
Therefore, pre-1978 grants for works not
created until January 1, 1978 or later
should be subject to termination under
section 203. See, e.g., Comment of Jane
C. Ginsburg, Columbia University Law
School at page 1; and Comment of
Kenneth D. Freundlich, Freundlich
Law, and Neil W. Netanel, UCLA Law
School, at pages 5–6. This argument is
closely related to the idea that the rights
created by title 17 can vest only in
actual works of authorship, making the
creation date of the work central to the
point in time at which any right under
the Copyright Act, including the
termination right, may be transferred.
See, e.g., Comment of Randall D. Wixen,
Wixen Music Publishing, Inc., at 1.
Several commenters also cited the
legislative history of the 1976 Copyright
Act and the express exceptions that are
found within the termination provisions
as evidence that Congress did not intend
to preclude termination of pre-1978
grants of works created on or after
January 1, 1978. See, e.g., Comment of
Bill Gable, Law Offices of Bill Gable, at
page 2; and Comment of Niels
Schaumann, William Mitchell College
of Law, at page 4.
At least one comment, however,
expressed skepticism that section 203
should apply to any fact patterns in
which grants were made prior to
January 1, 1978. It observed that there
is some evidence that ‘‘Congress may
have intended the term executed to
mean signed’’ in other sections of the
Copyright Act and that prior to the
enactment of the Copyright Act of 1976,
publications by the Copyright Office
had expressed views consistent with the
conclusion that a grant should be
considered to be executed on the date
the grant was signed. See Reply
Comment of the Recording Industry
Association of America, Inc. (‘‘RIAA’’),
at pages 2–3.
Based on the comments received, the
Copyright Office believes that there are
legitimate grounds to assert that, in the
case of a grant signed (or, in the case of
an oral license, agreed to) before January
1, 1978 regarding rights in a work not
created until January 1, 1978 or later,
such a grant cannot be ‘‘executed’’ until
the work exists. Therefore, the Office
will record a notice of termination in
such a case so long as the notice states
that the grant was executed on a
specified date that is on or after January
1, 1978. A person serving and
submitting a notice of termination based
on the rationale described above would
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Sfmt 4702
be justified in including in the notice,
as the date of execution of the grant, the
date that the work was created. For
purposes of clearly identifying the grant
being terminated, it may be useful also
to state the date the grant was signed.
The Office’s recordation of such notices
of termination is without prejudice as to
how a court might ultimately rule on
whether the document is a notice of
termination within the scope of section
203. See 37 CFR 201.10(f)(5).
Through the proposed regulatory
amendments, the Office seeks to provide
immediate practical guidance in light of
the fact that the first deadlines for
serving notices of section 203
terminations for grants executed in 1978
(if the terminating party wishes to
terminate on the earliest possible date)
will begin to expire next year. The
amendments clarify that, consistent
with existing recordation practices, the
Office reserves the right to refuse a
document for recordation as a section
203 notice of termination if the date of
execution of the grant, as reflected in
the document submitted as a notice of
termination, falls before January 1, 1978.
This practice is consistent with the law
(17 U.S.C. 203(a)) and the existing
regulations (37 CFR 201.10(b)(2)). The
proposed amendments to the
regulations underscore the
consequences of failure on the part of an
author or his heirs to comply with this
aspect of section 203(a) of the Copyright
Act, which can prevent recordation of
the document as a notice of termination.
Failure to record a notice of termination
in a timely manner is a fatal error that
will prevent termination from taking
effect.
The Office also takes the opportunity
in this proposed rulemaking to clarify
certain circumstances under which the
Office will refuse to index as notices of
termination documents submitted under
section 203, for reason of certain
procedural failures drawn from the clear
language of the Copyright Act. These
circumstances include a date of
execution of the grant that falls before
January 1, 1978 (as discussed above), an
effective date of termination that does
not fall within the allowed statutory
period (17 U.S.C. 203(a)(3)), improperly
timed service of the notice of
termination (17 U.S.C. 203(a)(4)(A)), or
submission of documents for
recordation as notice of termination on
or after the effective date of termination
(17 U.S.C. 203(a)(4)(A)). These
circumstances are not intended to be an
exhaustive list of procedural failures
that may result in failure to record
notices of termination.
E:\FR\FM\26NOP1.SGM
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Federal Register / Vol. 75, No. 227 / Friday, November 26, 2010 / Proposed Rules
List of Subjects in 37 CFR Part 201
FEDERAL COMMUNICATIONS
COMMISSION
Copyright.
47 CFR Part 64
Proposed Regulations
In consideration of the foregoing, the
Copyright Office proposes to amend part
201 of 37 CFR, as follows:
PART 201—GENERAL PROVISIONS
1. The authority citation for part 201
reads as follows:
Authority: 17 U.S.C. 702; Section 201.10
also issued under 17 U.S.C. 203 and 304.
§ 201.10 Notices of termination of
transfers and licenses.
srobinson on DSKHWCL6B1PROD with PROPOSALS
*
*
*
*
(f) * * *
(4) Notwithstanding anything to the
contrary in this section, the Copyright
Office reserves the right to refuse
recordation of a notice of termination as
such if, in the judgment of the Copyright
Office, such notice of termination is
untimely. Conditions under which a
notice of termination will be considered
untimely include: the date of execution
stated therein does not fall on or after
January 1, 1978, as required by section
203(a) of title 17, United States Code;
the effective date of termination does
not fall within the five-year period
described in section 203(a)(3) of title 17,
United States Code; or the documents
submitted indicate that the notice of
termination was served less than two or
more than ten years before the effective
date of termination. If a notice of
termination is untimely or if a
document is submitted for recordation
as a notice of termination on or after the
effective date of termination, the Office
will offer to record the document as a
‘‘document pertaining to copyright’’
pursuant to § 201.4(c)(3), but the Office
will not index the document as a notice
of termination. Any dispute as to
whether a document so recorded is
sufficient in any instance to effect
termination as a matter of law shall be
determined by a court of competent
jurisdiction.
*
*
*
*
*
Dated: November 19, 2010.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 2010–29743 Filed 11–24–10; 8:45 am]
BILLING CODE 1410–30–P
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Empowering Consumers to Avoid Bill
Shock; Consumer Information and
Disclosure
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document, the
Commission proposes rules that would
require mobile service providers to
provide usage alerts and information
that will assist consumers in avoiding
unexpected charges on their bills. The
Commission believes its proposals will
allow consumers to understand the
costs associated with use of their mobile
service plans and take advantage of
safeguards against bill shock by
providing them with timely information
to better manage those costs and thereby
avoid incurring unexpected charges on
their bills.
DATES: Comments are due on or before
December 27, 2010. Reply comments are
due on or before January 25, 2011.
Written comments on the proposed
information collection requirements,
subject to the Paperwork Reduction Act
of 1995, Public Law 104–13 (PRA),
should be submitted on or before
January 25, 2011.
ADDRESSES: You may submit comments,
identified by [CG Docket No. 10–207],
by any of the following methods:
fi Electronic Filers: Comments may
be filed electronically using the Internet
by accessing the Commission’s
Electronic Comment Filing System
(ECFS) https://fjallfoss.fcc.gov/ecfs2/ or
the Federal eRulemaking Portal: https://
www.regulations.gov. Filers should
follow the instructions provided on the
Web site for submitting comments and
transmit one electronic copy of the
filing to each docket number referenced
in the caption, which in this case is CG
Docket No. 10–207. For ECFS filers, in
completing the transmittal screen, filers
should include their full name, U.S.
Postal Service mailing address, and the
applicable docket number.
Parties may also submit an electronic
comment by Internet e-mail. To get
filing instructions, filers should send an
e-mail to ecfs@fcc.gov, and include the
following words in the body of the
message, ‘‘get form .’’ A sample form and
directions will be sent in response.
fi Paper Filers: Parties who choose to
file by paper must file an original and
SUMMARY:
2. Amend § 201.10 by revising
paragraph (f)(4) as follows:
*
[CG Docket Nos. 10–207 and 09–158; FCC
10–180]
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72773
four copies of each filing. Because two
docket numbers appear in the caption of
this proceeding, filers must submit two
additional copies for the additional
docket number. In addition, parties
must send one copy to the
Commission’s duplicating contractor,
Best Copy and Printing, Inc., 445 12th
Street, SW., Washington, DC 20554, or
via e-mail to fcc@bcpiweb.com. 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.
fi All hand-delivered or messengerdelivered paper filings for the
Commission’s Secretary must be
delivered to FCC Headquarters at 445
12th St., SW., Room TW–A325,
Washington, DC 20554. All hand
deliveries must be held together with
rubber bands or fasteners. Any
envelopes must be disposed of before
entering the building. The filing hours
are 8 a.m. to 7 p.m.
fi 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. U.S. Postal Service firstclass, Express, and Priority mail must be
addressed to 445 12th Street, SW.,
Washington, DC 20554.
In addition, document FCC 10–180
contains proposed information
collection requirements subject to the
PRA. It will be submitted to the Office
of Management and Budget (OMB) for
review under section 3507 of the PRA.
OMB, the general public, and other
Federal agencies are invited to comment
on the proposed information collection
requirements contained in this
document. PRA comments should be
submitted to Cathy Williams, Federal
Communications Commission via e-mail
at PRA@fcc.gov and
Cathy.Williams@fcc.gov, and to
Nicholas A. Fraser, Office of
Management and Budget, via fax at
(202) 395–5167, or via e-mail to
Nicholas_A._Fraser@omb.eop.gov.
FOR FURTHER INFORMATION CONTACT:
Richard D. Smith, Consumer and
Governmental Affairs Bureau, Policy
Division, at (717) 338–2797 (voice), or email Richard.Smith@fcc.gov.
For additional information concerning
the PRA information collection
requirements contained in this
document, contact Cathy Williams,
Federal Communications Commission,
at (202) 418–2918, or via e-mail
Cathy.Williams@fcc.gov.
E:\FR\FM\26NOP1.SGM
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Agencies
[Federal Register Volume 75, Number 227 (Friday, November 26, 2010)]
[Proposed Rules]
[Pages 72771-72773]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-29743]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2010-5]
Gap in Termination Provisions
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Copyright Office is proposing to amend its regulations
governing notices of termination of certain grants of transfers and
licenses of copyright under section 203 of the Copyright Act of 1976.
The amendments are intended to clarify the recordation practices of the
Copyright Office regarding the content of section 203 notices of
termination and the timeliness of their service and recordation,
including a clarification that the Office will accept for recordation
under section 203 a notice of termination of a grant agreed to before
January 1, 1978 as long as the work that is the subject of the grant
was not created before 1978. Whether such notices of termination fall
within the scope of section 203 will ultimately be a matter to be
resolved by the courts.
DATES: Comments on the Notice of Proposed Rulemaking and Requests for
Comments are due on or before December 27, 2010.
ADDRESSES: The Copyright Office strongly prefers that comments be
submitted electronically. A comment page containing a comment form is
posted on the Copyright Office Web site at https://www.copyright.gov/docs/termination. The Web site interface requires submitters to
complete a form specifying name and organization, as applicable, and to
upload comments as an attachment via a browse button. To meet
accessibility standards, all comments must be uploaded in a single file
in either the Adobe Portable Document File (PDF) format that contains
searchable, accessible text (not an image); Microsoft Word;
WordPerfect; Rich Text Format (RTF); or ASCII text file format (not a
scanned document). The maximum file size is 6 megabytes (MB). The name
of the submitter and organization should appear on both the form and
the face of the comments. All comments will be posted publicly on the
Copyright Office Web site exactly as they are received, along with
names and organizations. If electronic submission of comments is not
feasible, please contact the
[[Page 72772]]
Copyright Office at 202-707-8125 for special instructions.
FOR FURTHER INFORMATION CONTACT: Amanda Wilson Denton, Counsel for
Policy and International Affairs, by telephone at 202-707-8125 or by
electronic mail at amwi@loc.gov.
SUPPLEMENTARY INFORMATION:
Background
The Copyright Act gives authors (and some heirs, beneficiaries and
representatives who are specified by statute) the right to terminate
certain grants of transfers or licenses within the time frames set
forth in the statute and subject to the execution of certain conditions
precedent. Termination rights (also referred to as ``recapture
rights'') are equitable accommodations under the law. They allow
authors or their heirs a second opportunity to share in the economic
success of their works. Codified in sections 304(c), 304(d) and 203 of
Title 17, respectively, they encompass grants made before as well as
after January 1, 1978 (the effective date of the 1976 Copyright Act).
However, the provisions do not apply to copyrights in works made for
hire or grants made by will. Sections 304(c) and 304(d) establish
termination rights for works subject to grants of transfers or licenses
of copyright (or of any right under a copyright) made before January 1,
1978, the effective date of the 1976 Copyright Act. Section 203, which
is the subject of this proposed rulemaking, establishes termination
rights for works subject to grants of transfers or licenses executed by
the author on or after the effective date of the 1976 Copyright Act.
This proposed rulemaking is intended to address a narrow fact
pattern that was the subject of a notice of inquiry after some authors
and their representatives brought concerns to the attention of the
Copyright Office and some Congressional Offices. In a Federal Register
Notice dated March 29, 2010 (75 FR 15390), the Office sought comments
as to whether or how the termination provisions apply in circumstances
where a grant was agreed to prior to January 1, 1978, but the work in
question was created on or after January 1, 1978. In response to the
Notice of Inquiry, the Copyright Office received sixteen initial
comments and nine reply comments. These comments are available online
on the Copyright Office Web site, at https://www.copyright.gov/docs/termination/.
Several of those commenters took the position that the termination
right provided in section 203 of the Copyright Act should be available
under the circumstances in question. They based this position on a
number of legal and policy arguments, prominent among which was the
argument that a grant is not fully executed under the law until the
relevant work has been created. Therefore, pre-1978 grants for works
not created until January 1, 1978 or later should be subject to
termination under section 203. See, e.g., Comment of Jane C. Ginsburg,
Columbia University Law School at page 1; and Comment of Kenneth D.
Freundlich, Freundlich Law, and Neil W. Netanel, UCLA Law School, at
pages 5-6. This argument is closely related to the idea that the rights
created by title 17 can vest only in actual works of authorship, making
the creation date of the work central to the point in time at which any
right under the Copyright Act, including the termination right, may be
transferred. See, e.g., Comment of Randall D. Wixen, Wixen Music
Publishing, Inc., at 1. Several commenters also cited the legislative
history of the 1976 Copyright Act and the express exceptions that are
found within the termination provisions as evidence that Congress did
not intend to preclude termination of pre-1978 grants of works created
on or after January 1, 1978. See, e.g., Comment of Bill Gable, Law
Offices of Bill Gable, at page 2; and Comment of Niels Schaumann,
William Mitchell College of Law, at page 4.
At least one comment, however, expressed skepticism that section
203 should apply to any fact patterns in which grants were made prior
to January 1, 1978. It observed that there is some evidence that
``Congress may have intended the term executed to mean signed'' in
other sections of the Copyright Act and that prior to the enactment of
the Copyright Act of 1976, publications by the Copyright Office had
expressed views consistent with the conclusion that a grant should be
considered to be executed on the date the grant was signed. See Reply
Comment of the Recording Industry Association of America, Inc.
(``RIAA''), at pages 2-3.
Based on the comments received, the Copyright Office believes that
there are legitimate grounds to assert that, in the case of a grant
signed (or, in the case of an oral license, agreed to) before January
1, 1978 regarding rights in a work not created until January 1, 1978 or
later, such a grant cannot be ``executed'' until the work exists.
Therefore, the Office will record a notice of termination in such a
case so long as the notice states that the grant was executed on a
specified date that is on or after January 1, 1978. A person serving
and submitting a notice of termination based on the rationale described
above would be justified in including in the notice, as the date of
execution of the grant, the date that the work was created. For
purposes of clearly identifying the grant being terminated, it may be
useful also to state the date the grant was signed. The Office's
recordation of such notices of termination is without prejudice as to
how a court might ultimately rule on whether the document is a notice
of termination within the scope of section 203. See 37 CFR
201.10(f)(5).
Through the proposed regulatory amendments, the Office seeks to
provide immediate practical guidance in light of the fact that the
first deadlines for serving notices of section 203 terminations for
grants executed in 1978 (if the terminating party wishes to terminate
on the earliest possible date) will begin to expire next year. The
amendments clarify that, consistent with existing recordation
practices, the Office reserves the right to refuse a document for
recordation as a section 203 notice of termination if the date of
execution of the grant, as reflected in the document submitted as a
notice of termination, falls before January 1, 1978. This practice is
consistent with the law (17 U.S.C. 203(a)) and the existing regulations
(37 CFR 201.10(b)(2)). The proposed amendments to the regulations
underscore the consequences of failure on the part of an author or his
heirs to comply with this aspect of section 203(a) of the Copyright
Act, which can prevent recordation of the document as a notice of
termination. Failure to record a notice of termination in a timely
manner is a fatal error that will prevent termination from taking
effect.
The Office also takes the opportunity in this proposed rulemaking
to clarify certain circumstances under which the Office will refuse to
index as notices of termination documents submitted under section 203,
for reason of certain procedural failures drawn from the clear language
of the Copyright Act. These circumstances include a date of execution
of the grant that falls before January 1, 1978 (as discussed above), an
effective date of termination that does not fall within the allowed
statutory period (17 U.S.C. 203(a)(3)), improperly timed service of the
notice of termination (17 U.S.C. 203(a)(4)(A)), or submission of
documents for recordation as notice of termination on or after the
effective date of termination (17 U.S.C. 203(a)(4)(A)). These
circumstances are not intended to be an exhaustive list of procedural
failures that may result in failure to record notices of termination.
[[Page 72773]]
List of Subjects in 37 CFR Part 201
Copyright.
Proposed Regulations
In consideration of the foregoing, the Copyright Office proposes to
amend part 201 of 37 CFR, as follows:
PART 201--GENERAL PROVISIONS
1. The authority citation for part 201 reads as follows:
Authority: 17 U.S.C. 702; Section 201.10 also issued under 17
U.S.C. 203 and 304.
2. Amend Sec. 201.10 by revising paragraph (f)(4) as follows:
Sec. 201.10 Notices of termination of transfers and licenses.
* * * * *
(f) * * *
(4) Notwithstanding anything to the contrary in this section, the
Copyright Office reserves the right to refuse recordation of a notice
of termination as such if, in the judgment of the Copyright Office,
such notice of termination is untimely. Conditions under which a notice
of termination will be considered untimely include: the date of
execution stated therein does not fall on or after January 1, 1978, as
required by section 203(a) of title 17, United States Code; the
effective date of termination does not fall within the five-year period
described in section 203(a)(3) of title 17, United States Code; or the
documents submitted indicate that the notice of termination was served
less than two or more than ten years before the effective date of
termination. If a notice of termination is untimely or if a document is
submitted for recordation as a notice of termination on or after the
effective date of termination, the Office will offer to record the
document as a ``document pertaining to copyright'' pursuant to Sec.
201.4(c)(3), but the Office will not index the document as a notice of
termination. Any dispute as to whether a document so recorded is
sufficient in any instance to effect termination as a matter of law
shall be determined by a court of competent jurisdiction.
* * * * *
Dated: November 19, 2010.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 2010-29743 Filed 11-24-10; 8:45 am]
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