Strategic Plan for Recordation of Documents, 2696-2699 [2014-00638]

Agencies

• Library of Congress
• Copyright Office

[Federal Register Volume 79, Number 10 (Wednesday, January 15, 2014)]
[Notices]
[Pages 2696-2699]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-00638]


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LIBRARY OF CONGRESS

Copyright Office

[Docket No. 2014-1]


Strategic Plan for Recordation of Documents

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

ACTION: Notice of Inquiry.

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SUMMARY: The United States Copyright Office is requesting public 
comment on proposed key elements relevant to reengineering the function 
of recording documents pertaining to copyright pursuant to 17 U.S.C. 
205. In a separate notice that will be published soon, the Office will 
also announce a series of public hearings on these elements, scheduled 
shortly after the end of the comment period on this Notice of Inquiry. 
The elements have been developed with the aid of previous comments 
obtained during the Office's two-year Special Projects process, 
particularly the Special Project on Technical Upgrades to Registration 
and Recordation Functions. (That Project's Notice of Inquiry and the 
comments received in response are available at https://www.copyright.gov/docs/technical_upgrades/.)
    In particular, the Office is seeking comment and holding public 
hearings on the following elements: (1) A guided remitter 
responsibility model of electronic recordation; (2) the use of 
structured electronic documents that contain their own indexing 
information; (3) the linking of recordation records to registration 
records; (4) the use of standard identifiers, and other metadata 
standards, in recorded documents and the catalog of such documents; and 
(5) potential additional incentives to record documents pertaining to 
copyrights. Further explanation of these elements is to be found below 
in the SUPPLEMENTARY INFORMATION section of this Notice.
    The Office appreciates in particular comments from parties who 
record documents and the professionals who assist them in doing so; 
from parties experienced with electronic recordation in other areas, 
such as that of real property; from those who maintain databases of 
copyrighted works for licensing or other purposes; from those who have 
developed or are developing metadata standards for copyright management 
purposes; and from those who use the Copyright Office's catalog and 
collection of recorded documents for any purpose.

DATES: Comments on the Notice of Inquiry and Requests for Comments are 
due on or before March 15, 2014. The Office will hold public hearings 
on the east and west coasts following the close of the public comment 
period on dates to be determined.

ADDRESSES: All comments shall be submitted electronically. A comment 
page containing a comment form is posted on the Copyright Office Web 
site at https://www.copyright.gov/docs/recordation. 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 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 Copyright Office at 202-
707-8350 for special instructions.

FOR FURTHER INFORMATION CONTACT: Robert Brauneis, Abraham L. Kaminstein 
Scholar in Residence, by email at USCOrecordation@loc.gov, or call the 
U.S. Copyright Office by phone at 202-707-9536.

SUPPLEMENTARY INFORMATION:

I. Background

    Since 1870, the Copyright Office has recorded documents pertaining 
to copyright, such as assignments, licenses, and grants of security 
interests in works under copyright. It has accepted such copyright-
related documents from remitters for recordation; returned documents 
marked as recorded to remitters; made copies of those documents 
permanently available for public inspection; and ensured the 
preparation of indexes to assist the public in finding relevant 
documents. Congress has encouraged the recordation of copyright-related 
documents by bestowing certain legal advantages on recorded documents. 
In some cases, such as that of notices of terminations of transfer, it 
has required the filing of documents as a condition of their legal 
effectiveness. A principal purpose of these incentives and requirements 
is to ensure that those who are interested in licensing, purchasing, or 
gaining security interests in works under copyright can learn of the 
current state of the titles in those works. Thus, the Copyright Office 
has an important interest in ensuring that the public record of 
copyright transactions is as complete and as accurate as possible.
    In 1870, documents remitted for recordation arrived at the 
Copyright Office in paper form, and Copyright Office employees prepared 
index or catalog entries for those documents by manually transcribing 
selected information from the documents. Almost 150 years later, that 
is still the case. Many other aspects of the recording process have 
changed. Recorded documents used to be manually transcribed in full; 
they now are scanned and stored electronically. The index to recorded 
documents used to appear in the front of bound volumes or on index 
cards; it is now maintained as part of an online electronic database 
known as the Copyright Office Catalog,

[[Page 2697]]

which also contains copyright registration records. Yet documents must 
still be remitted for recordation in paper form, and Office employees 
must still read and interpret those documents and manually transcribe 
selected information from them to create catalog entries in the 
Copyright Office Catalog. In this respect, the Copyright Office's 
document recordation service has lagged behind its copyright 
registration service. The Office began accepting registration 
applications online in July 2008, but for budgetary reasons it dropped 
plans to reengineer recording services. Thus, modernizing and improving 
recordation services is a top concern of the Copyright Office.

II. Discussion

    Over the past two years, the Copyright Office has sought comments 
on technological upgrades to the recordation function, and has held 
focused discussions with copyright owners, users of copyright records, 
technical experts, public interest organizations, lawyers, and 
professional and industry associations. Participants in that process 
have expressed a number of serious concerns about the current 
recordation system, and have offered a variety of helpful suggestions 
for improvement.
    A. Leading Concerns About Recordation. The most prominent recurring 
concerns about document recordation are cost, processing time, 
inconvenience of remitting, and cataloguing inaccuracies.
    1. Cost. Because recordation has remained labor-intensive while 
many other Copyright Office functions have increased in efficiency, 
recordation has become relatively more expensive. While for many 
decades the basic recordation and registration fees were the same, the 
most basic recordation fee is now over two times that of the most basic 
registration fee. That fee difference is a direct result of estimates 
of the cost of performing those services. Stakeholder comments reveal 
serious concerns about the fee level for recordation. They also reveal 
that high fees have deterred some from recording documents altogether, 
and have caused others to take actions that leave significant gaps in 
the public record. Those actions include recording transfers for large 
numbers of works without specifically identifying them, and submitting 
new registrations for previously registered works in the name of 
assignees rather than recording transfer documents.
    2. Processing Time. Many who remit documents to be recorded have 
also expressed serious concerns about the time needed for processing 
remitted documents. They have noted that it can take a year or longer 
for the Copyright Office to return a remitted document marked as 
recorded, and that it can take even longer for information about the 
document to become available online in the Copyright Office Catalog. 
Comments have suggested that the longest delays are caused by the need 
to transcribe manually the titles of works to which a remitted document 
pertains.
    3. Inconvenience of Remitting. Document remitters have also 
expressed concerns about the difficulty and inconvenience of remitting 
documents for recordation, and about the mismatch between Copyright 
Office requirements and their own business practices. Many remitted 
documents are originally produced electronically in a word processing 
format, and could easily be saved in a cross-platform format such as 
Adobe Portable Document Format and transmitted electronically to the 
Copyright Office for recording. Other documents could be scanned and 
transmitted electronically. However, the Copyright Office currently 
only accepts paper documents, so document remitters must print all 
documents and send them in paper form to the Copyright Office, which 
increases the labor and cost involved in recording. The Copyright 
Office also currently requires an actual ``wet'' signature on either 
the remitted document or on an accompanying certification. Some 
copyright transactions are now accomplished with electronic signatures, 
and remitters must therefore prepare special versions of the documents 
with actual signatures on paper solely for purposes of recording. This 
also contributes to the difficulty and cost of recording.
    4. Cataloging Inaccuracies. The existing system of preparing 
Copyright Office Catalog records for recorded documents through manual 
transcription from paper documents also results in significant numbers 
of inaccuracies in those records. Commenters have complained about such 
inaccuracies as typographical errors in names and titles; incorrectly 
transcribed registration numbers; incorrectly transcribed dates; and 
incorrect indexing of titles under ``the'' and other articles. Such 
inaccuracies can cause users of the Catalog to miss documents relevant 
to their concerns, or to gain mistaken impressions of the nature of 
those documents.
    B. Concerns regarding the optimum identification of works to which 
recorded documents pertain. Stakeholders have expressed a number of 
related concerns regarding how works are identified in recorded 
documents. These include concerns about whether documents concerning 
particular works can be located at all; whether document records can be 
linked to registration records pertaining to the same works; and 
whether Copyright Office records can be integrated with information 
about works derived from other sources.
    1. Identification of works to which recorded documents pertain. 
Given current requirements, incentives, and practices, it is sometimes 
very difficult to identify specific works the ownership of which is 
affected by recorded documents. Under current law and regulations, 
documents will be accepted for recordation whether or not they identify 
particular works the ownership of which they affect. A document will be 
rejected for lack of work identification only if the omission of an 
identifier renders the document incomplete on its face--when, for 
example, the document refers to a list of title in an Appendix that is 
missing. Sections 205(c) and 205(d) of the Copyright Act do create 
incentives to identify a work to which a document pertains by title or 
registration number. Section 205(c) provides that a recorded document 
provides constructive notice of the facts stated in it only if the 
document or an attachment ``specifically identifies the work to which 
it pertains so that, after the document is indexed by the Register of 
Copyrights, it would be revealed by a reasonable search under the title 
or registration number of the work.'' 17 U.S.C. 205(c). Section 205(d) 
provides that only those transfers recorded in such a manner to give 
constructive notice under section 205(c) will be protected against 
conflicting transfers. 17 U.S.C. 205(d).
    Commenters have questioned the usefulness of these incentives in 
practice. Fewer than half of the works that have been specifically 
identified in recorded documents since 1978 are identified by 
registration number. While virtually all specifically identified works 
are identified by title, there is no requirement that a title be 
unique. Moreover, many works are not generally known by the titles that 
are submitted as identification. The titles submitted for photographs, 
for example, are often no more than strings of digits, which are not 
helpful for search purposes.
    2. The linking of document records with registration records. Since 
1978, document remitters have identified by copyright registration 
number almost four million works affected by remitted documents. 
However, remitters have submitted those registration numbers in many 
different formats, which often

[[Page 2698]]

differ in matters of spacing, hyphenation, and other punctuation from 
the official format used by the Copyright Office. Each registration 
number is transcribed into the Copyright Office Catalog in exactly the 
format in which that the remitter submitted it, and document 
specialists do not verify that the number submitted is a valid 
registration number. As a result, the Copyright Office Catalog does not 
contain links between recorded documents and registrations, and even 
valid registration numbers found in document records may need to be 
reformatted before they can be used to locate related registration 
records. This can render it more difficult to make a positive 
identification of a work affected by a recorded document, and to locate 
all documents affecting title in a work.
    3. Integration of Copyright Office records with information about 
works from other sources. There are many privately maintained databases 
that contain information about large numbers of works under copyright. 
These include databases maintained by various types of rights 
management organizations such as ASCAP, BMI, SESAC, the Copyright 
Clearance Center, the Harry Fox Agency, and Art Resource; by companies 
that own and license large numbers of copyrighted works, such as Getty 
Images and Corbis; and by music identification app developers such as 
Shazam, Midomi, and SoundHound. None of the records contained in these 
databases is currently linked to registration or document records in 
the Copyright Office Catalog. The lack of such links means that users 
of the privately-maintained databases cannot easily find Copyright 
Office records about the works represented in those databases, and 
users of the Copyright Office Catalog cannot easily find licensing 
information contained in the privately-maintained databases, thus 
making Copyright Office records less commercially useful and relevant.
    Links between databases are impeded due to the lack of common work 
identifiers and metadata standards. Although some recorded documents 
may include standard work identifiers such as International Standard 
Musical Work Codes (ISWCs) and International Standard Text Codes 
(ISTCs), document records in the Copyright Office Catalog do not 
include these numbers. Registration records in the Copyright Office 
Catalog may include standard work identifiers, but only about a million 
of them do, out of over seventeen million records, and many of these 
codes do not strictly speaking represent works. Rather, they represent 
physical deposits, such as books identified by International Standard 
Book Numbers (ISBNs).
    C. Concerns about the Sufficiency of Statutory Incentives to Record 
Transactions. Existing statutory incentives to record documents 
pertaining to copyright are limited to protection against conflicting 
transfers and nonexclusive licenses under conditions specified by 
section 205(d) of the Copyright Act, provision of constructive notice 
under section 205(c) of the Act, and under the interpretation of some 
courts, perfection of security interests in registered works. In 1989, 
Congress removed the requirement to record any documents in the chain 
of title from a work's author to an owner of that work as a 
precondition of that owner filing an infringement action. Commenters 
have questioned whether the remaining incentives to record are 
sufficient to induce parties to significant copyright transactions to 
disclose them, and thus to ensure that those who are interested in 
licensing, purchasing, or gaining security interests in works under 
copyright can learn of the current state of titles in those works.

III. Subjects of Inquiry

    In response to the concerns articulated above, the Copyright Office 
is currently considering several specific elements of a strategic plan 
for improvement of recordation services, and for improvement of the 
quality of copyright information provided to the public through 
recordation. The Office is particularly interested in comments on the 
following key elements:
    1. A Guided Remitter Responsibility Model of Electronic 
Recordation. As noted above, the high cost and long processing time 
currently associated with copyright document recordation stem in large 
part from a process in which recordation specialists must read paper 
documents and manually transcribe selected information from them to 
electronic catalog records that become part of the Copyright Office 
Catalog. Electronic submission of such information by remitters could 
certainly reduce the time need to process a document for recordation. 
However, checking information submitted electronically by remitters 
against each remitted document itself would still be a time-consuming 
process. Remitted documents do not come in any particular format, and 
there is no single standard for the language used in those documents or 
the order in which documents use language with legal effect. As a 
result, recordation specialists would still have to spend substantial 
time reading and interpreting the documents to check submitted catalog 
entry information, such as the names of the two or more parties to the 
transaction, the role of the parties as grantors or recipients of the 
interests being transferred, the nature of the interests that are being 
transferred, and the titles, registration numbers, or other identifiers 
of the works in which interests are being transferred.
    Because of the process of comparing submitted catalog information 
against each individual remitted document is irreducibly time-
consuming, the Copyright Office is considering adopting a model under 
which remitters would be responsible in the first instance for the 
accuracy of the catalog information that they submit electronically. 
Recordation specialists would not check that information against 
remitted documents on a case-by-case basis, but would rather engage in 
systemic quality control, performing targeted spot checks and 
continuously refining predictive models of which inaccuracies were 
likely to occur in which types of documents.
    While remitters might be worried that inadvertent errors would go 
uncorrected, electronic submission of information allows for a variety 
of types of guidance that would greatly reduce the number of 
inaccuracies entering the Copyright Office Catalog. For example, when a 
limited number of answers to a question are valid, electronic forms can 
provide enumerations such a drop-down boxes or buttons, rather than 
empty fields, to eliminate entries that are invalid or contain 
typographical errors. Many entries can be validated against lists of 
valid values or templates of valid formats, and rejected or questioned 
if the entries are not found in the lists or entered in valid formats. 
Crucial information can be required to be entered twice, and 
consistency between the entries can be checked. Parties that record 
documents frequently could carefully enter repeated information such as 
names and addresses once, and then access that stored information when 
recording subsequent documents, to ensure consistency between catalog 
entries. Such a guided remitter responsibility model could reduce the 
cost of recordation to a small fraction of the current cost. Electronic 
recordation fees would be reduced accordingly. Paper-based recordation 
would continue to be available, but the fee would likely be a multiple 
of several times that of electronic recordation.
    The Copyright Office is seeking comments on this model of 
electronic recordation. Comments are welcome, not only on features that 
are unique to this particular model, but on features

[[Page 2699]]

that are common to electronic recordation more generally, and that 
would require statutory or regulatory amendment. These include the 
acceptance of electronic signatures and the protection of personally 
identifiable information.
    2. Structured Electronic Documents. The Copyright Office is also 
considering whether to adopt standards for and accept structured 
electronic documents in which tagged indexing or cataloging information 
is integrated into the documents themselves. Such documents contain 
several linked layers or folders. The name of a granting party 
displayed in the sentence that grants an interest in a copyrighted 
work, for example, is drawn from a field that identifies that name as a 
granting party name for cataloguing purposes.
    Many government agencies that record documents conveying interests 
in real property have adopted standards for and are accepting such 
structured electronic documents. However, many of those agencies record 
millions of documents a year, whereas the Copyright Office currently 
records fewer than 15,000 documents a year, though those documents 
represent transactions involving several hundred thousand works. 
Moreover, a relatively small number of intermediaries--banks and title 
insurance companies--are involved in almost every real estate 
transaction, which makes the adoption and implementation of standards 
relatively easy, while fewer copyright transactions seem to involve 
such intermediaries. The Copyright Office is seeking comments on the 
feasibility of adopting standards for and accepting structured 
electronic documents pertaining to copyright.
    3. Linking of Document Records to Registration Records. The Office 
is considering whether it should link records of documents pertaining 
to registered works to the registration records for those works. In 
particular, it is seeking comments on whether it should require by 
regulation that document remitters provide registration numbers in a 
standardized format for all registered works to which their documents 
pertain.
    4. Use of Standard Identifiers and Other Metadata Standards. The 
Office is considering whether it should adopt incentives or 
requirements with respect to the provision of standard identifiers, 
such as International Standard Musical Work Codes and International 
Standard Audiovisual Numbers, in recorded documents. Comments are 
welcome regarding the degree to which the provision of such identifiers 
would aid in uniquely identifying affected works and in linking 
Copyright Office Catalog information about works to other sources of 
information about such works. Comments are also welcome on whether such 
incentives or requirements might be more appropriate or helpful with 
regard to some types of works than with regard to others. The Office is 
also considering whether it should adopt or ensure compatibility with 
metadata standards more broadly, and welcomes comments on the utility 
of metadata standards and on particular metadata projects that it 
should consider.
    5. Additional Statutory Incentives to Record Documents Pertaining 
to Copyright. A number of academic commentators have proposed that 
Congress create additional incentives or requirements for recording 
documents pertaining to copyright. Congress could reinstate the 
requirement, dropped in 1989, of recording all documents in the chain 
of title from the author to the current owner of copyright as a 
precondition of filing in infringement lawsuit. It could also condition 
the provision of certain remedies, such as statutory damages and 
attorneys' fees, on the recordation of any and all documents that 
transferred ownership of works to those eligible to sue for 
infringement at the time infringement commenced. Perhaps the broadest 
proposal is to provide that no transfer of a copyright interest will be 
valid unless a note or memorandum of that transfer is recorded with 
sufficient description of the interest granted and identification of 
the parties from and to whom the interest is granted. The Copyright 
Office is seeking comment on the benefits and costs of such proposals, 
and on their compatibility with the treaty commitments of the United 
States.

    Dated: January 10, 2014.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2014-00638 Filed 1-14-14; 8:45 am]
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