Changes to Recordation Practices, 41470-41473 [2014-16726]

Agencies

• Library of Congress

[Federal Register Volume 79, Number 136 (Wednesday, July 16, 2014)]
[Proposed Rules]
[Pages 41470-41473]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-16726]


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LIBRARY OF CONGRESS

 Copyright Office

37 CFR Part 201

[Docket No. 2014-04]


Changes to Recordation Practices

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Copyright Office is proposing to amend its 
regulations for the recordation of copyright transfers and other 
documents. The proposed rule is intended to reduce the amount of time 
the Office requires to process certain types of documents submitted for 
recordation and help to alleviate remitter concerns regarding the 
receipt of documents for processing. To these ends, the Office is 
proposing to amend the regulations to encourage remitters to include a 
cover sheet with the documents they submit for processing; allow 
remitters to submit long title lists in electronic format; and provide 
remitters with the option to request return receipts that acknowledge 
that the Office has received a submission. The Office invites public 
comment on the proposed rule.

DATES: Written comments are due on or before August 15, 2014, at 11:59 
p.m.

ADDRESSES: All comments shall be submitted electronically. A comment 
submission page is posted on the Copyright Office Web site at https://www.copyright.gov/rulemaking/recordation-practices. The Web site 
interface requires commenting parties to complete a form specifying 
their name and organization, as applicable, and to upload comments as 
an attachment via a browser button. To meet accessibility standards, 
commenting parties must upload comments in a single file not to exceed 
six megabytes (MB) in one of the following formats: a 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. The form and face of the comments must include both the name 
of the submitter and organization. The Office will post the comments 
publicly on the Office's Web site in the form that they are received, 
along with associated names and organizations. If electronic submission 
of comments is not feasible, please contact the Office at 202-707-8350 
for special instructions.

FOR FURTHER INFORMATION CONTACT: Jacqueline C. Charlesworth, General 
Counsel and Associate Register of Copyrights, by email at 
jcharlesworth@loc.gov or by telephone at 202-707-8350; or Sy Damle, 
Special Advisor to the General Counsel, by email at sdam@loc.gov, or by 
telephone at 202-707-8350.

SUPPLEMENTARY INFORMATION:

I. Background

    Since 1870, the Copyright Office has recorded documents pertaining 
to works under copyright, such as assignments, licenses, and grants of 
security interests. The process of recordation entails (1) receiving 
copyright-related documents from remitters for recordation; (2) 
reviewing the documents to ensure they are eligible for recordation; 
(3) indexing information contained in the documents for the public 
record; (4) making copies of the documents so they are available for 
public inspection; and (5) returning documents marked as recorded to 
remitters. Congress has encouraged the submission of documents for 
recordation by providing certain legal entitlements as a consequence of 
recordation. For instance, recordation provides constructive notice of 
the facts stated in the recorded document when certain conditions are 
met. See 17 U.S.C. 205(c). In addition, recordation is a condition for 
the legal effectiveness of notices of terminations of transfer. See id. 
203(a)(4)(A). Thus, the Office has an important interest in ensuring 
that the public record of copyright transactions is as timely, 
complete, and as accurate as possible.

II. Discussion

    Over the past several years, the Copyright Office has sought public 
input on technological upgrades to the recordation function. See 78 FR 
17722 (Mar. 22, 2013); 79 FR 2696 (Jan. 15, 2014). In addition to 
seeking written comments, the Office has held focused discussions with 
copyright owners, users of copyright records, technical experts, public 
interest organizations, lawyers, and professional and industry 
associations regarding the same. See 79 FR 6636 (Feb. 4, 2014). 
Participants in these processes have expressed a number of concerns 
about the current recordation system, including frustration with the 
submission process, the amount of time the Office requires to record 
remitted documents, and the searchability of the public record. These 
problems are related in part to the fact that recordation remains a 
paper-driven process (in contrast to most registration transactions, 
which occur electronically).\1\
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    \1\ For further information, see the comments obtained during 
the Copyright Office's two-year Special Projects process, 
particularly the Special Project on Technical Upgrades to 
Registration and Recordation Functions. Comments pertaining to the 
Special Project on Technological Upgrades to Registration and 
Recordation Functions are available on the Copyright Office Web site 
at https://www.copyright.gov//_upgrades/.
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    In response to these concerns, the Office is currently developing a 
strategic plan for the improvement of both recordation services and the 
quality of resulting information provided to the public. See 79 FR 2696 
(Jan. 15, 2014).\2\

[[Page 41471]]

The Office recognizes that, as it continues to develop its strategy for 
modernizing and improving recordation services via a comprehensive 
reengineering, there could nonetheless be immediate benefits if certain 
process changes were made within the existing regime. To this end, the 
proposed rules implement targeted amendments that are designed to speed 
the processing of remitted documents under the current system and 
alleviate concerns regarding the Office's receipt of submissions.
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    \2\ For further information, see the comments pertaining to the 
Copyright Office's Strategic Plan for Recordation of Documents. 
These comments are available on the Copyright Office Web site at 
https://www.copyright.gov/docs/recordation/.
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1. Forms

    The first change to the Copyright Office's regulations set forth in 
this proposed rule is purely administrative. The Office currently 
provides an optional Recordation Document Cover Sheet (Form DCS) to 
assist with processing. See 37 CFR 204.1(b).\3\ Remitters using Form 
DCS are instructed to include two copies of the form with their 
document submissions. If the Office receives Form DCS with a 
submission, the form becomes part of the public record and is 
associated with the recorded document. The Office also returns a copy 
of the form to the remitter at the completion of the recordation 
process along with the corresponding recorded document and certificate 
of recordation. The returned Form DCS serves as a summary of the newly 
created record and helps facilitate better recordkeeping and 
communication between the Office and remitters.\4\ Form DCS also 
contains an acceptable certification statement that may be used to 
satisfy the sworn certification requirement when applicable. See 17 
U.S.C. 205(a); 37 CFR 201.4(a)(3)(i). Though the form would still not 
be a requirement for recordation itself, the Office has proposed 
amending its regulations to reflect the fact that Form DCS may be 
included with remitters' submissions, and must be included if the 
remitter wants a return receipt. Form DCS will be amended to conform to 
the new procedures proposed here (e.g., by adding a checkbox to allow a 
remitter to indicate that it is requesting a return receipt, as 
described below).
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    \3\ The optional Recordation Document Cover Sheet (Form DCS) is 
available on the Copyright Office Web site at https://www.copyright.gov/forms/ forms/.
    \4\ For example, the returned Form DCS will generally include 
the volume and document number of the newly created record, a date 
of recordation, and a code that links the record to applicable 
filing fees.
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2. Electronic Submission of Title Appendices

    Currently, recordation specialists must review paper documents and 
manually transcribe selected information from the documents into an 
electronic format to permit indexing in the Office's Public Catalog 
database. Among the information that must be transcribed are the titles 
of copyrighted works associated with the document submitted for 
recordation, which are typically presented in a list appended to the 
document, referred to informally as a ``title appendix.'' A title 
appendix associated with a document can include hundreds, or even 
thousands, of titles. At present, long processing times associated with 
document recordation stem in large part from manual entry of these 
titles.
    To speed processing and clear the current backlog of large title 
entries, the Office proposes a rule to permit (but not require) the 
submission of title appendices in electronic format, in addition to 
paper format, where the total titles in a submission number 100 or 
more. This includes the situation where multiple title lists associated 
with a document contain, in the aggregate, 100 or more titles. The 
proposed electronic title submission rule will be added to subsection 
201.4(c), which will be retitled ``Document submission contents and 
process.''
    Under the proposed rule, the list of titles set forth in the paper 
submission must be submitted in a table in Excel (.xls) format, or an 
equivalent electronic format approved by the Office. The electronic 
entries may only contain letters, numbers, and printable characters 
that appear in the ASCII 128-character set. Each table must contain 
four columns respectively entitled Article, Title, Authorship 
Information, and Registration Number(s). Each title and its 
corresponding information must appear in a separate row of the 
electronic table:
    Article: If the title begins with one of a specified list of 
articles, the article should be separated from the title and placed in 
this first column. Separating out these leading articles from the rest 
of the title assists with the sorting function of the Public Catalog. 
The following articles are to be separated:

    In English: A, An, The
    In Spanish: Un, Una, El, La, Lo, Las, Los
    In French: L' (as in ``L'Ecole''), Le, La, Les, Un, Une
    In German: Der, Die, Das, Einer, Eine, Ein

    For example, if the title of the work is ``A Hard Day's Night,'' 
the Article field should have the word ``A''; similarly, if the title 
of the work is ``The Fly,'' this field should have the word ``The.'' If 
the title does not begin with an article identified above, the column 
should be included and this field should remain blank. Note that the 
words ``These,'' ``Those,'' ``Some,'' and ``Any'' are not considered 
articles and are not to be separated. In addition, the proposed rule 
does not require that remitters separate out articles in languages 
other than the ones listed.
    Title: This second column should set forth the title of the work, 
not including any leading article (which, as explained above, should be 
placed in the Article column). For example, if the title of the work is 
``A Hard Day's Night,'' the Title field should have the remainder of 
the title, ``Hard Day's Night''; the Title field for ``The Fly,'' 
should have the remainder of the title, ``Fly.''
    Authorship Information: This third column should include the word 
``By'' followed by the name of the author or authors of the work, e.g., 
``By John Lennon and Paul McCartney,'' or ``By Paul Hewson, Dave Evans, 
Adam Clayton, and Larry Mullen''. If the author's name includes a 
designation such as ``performer known as'' or ``also known as,'' this 
designation should be included in the Authorship Information field. If 
using the abbreviated form of such a designation, the abbreviation 
should be included without punctuation between the letters. For 
example, ``By Ella Yelich-O'Connor pka Lorde'' (but not ``By Ella 
Yelich-O'Connor p/k/a Lorde'').
    Registration Number(s): The fourth column should set forth the 
copyright registration number or numbers associated with the work if 
the remitter chooses to supply them. While this field is optional, the 
column should be included and the field left blank even if registration 
numbers are not supplied. Registration numbers included in the 
electronic list must be twelve characters long, must include a two- or 
three-letter prefix, and must not include spaces or hyphens. If a given 
registration number consists of fewer than twelve characters, the 
remitter should add leading zeroes to the numeric portion of the 
registration number before adding it to the list. For example, if a 
published work has the registration number ``SR-320-918,'' it should be 
transcribed into the electronic list submitted for recordation as 
``sr0000320918.'' Similarly, if an unpublished work has the 
registration number ``VAu-598-764,'' it should be transcribed into the 
electronic list submitted for recordation as ``vau000598764.''
    The electronic list must be stored on a compact disc, flash drive, 
or other digital storage medium approved by the

[[Page 41472]]

Copyright Office that is clearly labeled with the following 
information: The name of the remitting party, the name of the first 
party listed in the paper document, the first title listed in the paper 
document, the number of titles included in the paper document, and the 
date the remitting party mailed or delivered the paper document. The 
storage medium on which the electronic list is stored must be included 
in the same package as the paper document to be recorded, unless the 
Office agrees to an alternative arrangement. The allowance for 
alternative arrangements will facilitate the submission of electronic 
title lists for documents submitted prior to the effective date of this 
rule.
    By allowing remitters the option of submitting title appendices in 
electronic format, the Office will eliminate inefficiencies associated 
with the manual transcription of title information from paper to 
electronic format, thus significantly reducing the time and labor spent 
on creating these records, cutting down on inaccuracies, and providing 
a shorter wait time for remitters to receive their recorded documents 
and certificates of recordation.
    The proposed rule permits electronic submission only in cases where 
there are 100 or more titles associated with a document. This is 
because the steps required to process shorter title appendices could 
actually take longer than processing them in the ordinary course. The 
Office believes that electronic submission will prove more efficient 
only when indexing 100 or more titles.
    The Office has also considered how to handle any discrepancies 
between a paper document and the electronically formatted titles 
accompanying that paper document. In this regard, the Office has 
weighed the need for an accurate public record against the need to 
process large title submissions in a timely fashion and has come to a 
preliminary conclusion that the burden of creating an accurate record 
for the purposes of indexing in the Public Catalog must be placed on 
the remitter. The Copyright Office does not intend to cross-check 
electronic lists of titles against paper title appendices.
    The Office notes that there may be legal consequences that flow 
from a remitter's failure to submit an accurate electronic list of 
titles. For example, the Copyright Act provides that recordation of a 
document gives ``all persons constructive notice of the facts stated in 
the recorded document, but only if . . . the document, or material 
attached to it, 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). Since the Office 
will be relying on the electronic list of titles for purposes of 
indexing submitted documents, inaccuracies in such electronic lists 
could affect the ability to later claim that the public had 
constructive notice of the facts in the document. Thus, the omission of 
a title from the electronic list could negate constructive notice with 
respect to that title, even if the title appears in the paper document 
that is recorded, because the title would not be indexed. At the same 
time, if a title appears in the electronic list but is not included in 
the paper document that is actually recorded, the paper document will 
control.
    An additional consideration is that, under the statute, 
constructive notice can be provided where the document would be 
revealed ``by a reasonable search under the title or registration 
number of the work.'' Id. (emphasis added). Thus, although a remitter 
need not provide registration numbers when recording a document, 
inclusion of such numbers can help to ensure that the public is on 
notice of the facts contained in the document. At the same time, it is 
important to note that the Office will not verify the accuracy of 
registration numbers submitted (whether on paper or electronically). A 
remitting party's failure to include an accurate registration number in 
an electronic list, coupled with the failure to include an accurate 
title name, would likely prevent the title from being indexed such that 
the associated document would be ``revealed by a reasonable search 
under the title or registration number of the work,'' thus negating 
constructive notice. Id.
    Remitters should thus ensure that the electronic list of titles 
fully and accurately reflects the titles contained in the paper 
document. If an electronic submission is inconsistent with the 
information contained in the paper document, such discrepancies will 
result in corresponding inaccuracies in the Public Catalog, and the 
remitter will bear the legal consequences of such inaccuracies.

3. Return Receipt

    Many remitters have expressed to the Copyright Office their concern 
that after they submit their documents for recordation, it may take 
several months or longer before they receive any word on the status of 
their submission. The Office recognizes the benefits of the Office's 
acknowledgment of receipt of a submission, even if the submission 
awaits processing. The Office thus proposes a new, optional receipt 
confirmation system under which a remitter may request that the Office 
provide a return receipt. Remitters seeking a return receipt must 
complete and enclose the required two copies of Form DCS, making sure 
to check the box (to be added to the form) indicating that they want a 
return receipt. In addition, they must include a self-addressed, 
postage-paid envelope in the package. Upon opening the package, the 
Office will attach a date-stamped return receipt to one of the cover 
sheets and mail it back to the remitter via the self-addressed, 
postage-paid envelope.
    It is important to realize that a return receipt will establish 
only that the Office has received a submission as of the date 
indicated, and will not establish that a document is eligible for 
recordation, or provide a date of recordation. Only the certificate of 
recordation will provide the date of recordation. At this time, the 
Office will provide return receipts free of charge.

List of Subjects in 37 CFR Part 201

    Copyright.

Proposed Regulations

    For the reasons set forth in the preamble, the Copyright Office 
proposes to amend part 201 to Chapter II of Title 37 of the Code of 
Federal Regulations as follows:

PART 201--GENERAL PROVISIONS

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

    Authority:  17 U.S.C. 702.

0
2. Amend Sec.  201.4 by revising paragraph (b) and introductory text 
paragraph (c), adding paragraphs (c)(4) and (f), to read as follows:


Sec.  201.4  Recordation of transfers and certain other documents.

* * * * *
    (b) Forms. Persons recording documents are encouraged, but not 
required, to complete and include a Recordation Document Cover Sheet 
(Form DCS), available on the Copyright Office Web site, with their 
submissions; provided, however, that if the remitter seeks a return 
receipt as provided in paragraph (f) of this section, then Form DCS is 
required. Form DCS may also be used to satisfy the sworn certification 
requirement of 17 U.S.C. 205(a), as provided in 37 CFR 201.4(a)(3)(i). 
If Form DCS is used, two copies of the completed form should accompany 
each document submitted for recordation,

[[Page 41473]]

one of which will become part of the public record.
    (c) Document submission contents and process.
* * * * *
    (4) Submission of electronic title lists. If a document submitted 
for recordation pertains to 100 or more titles of copyrighted works 
(including where the total number of titles across multiple title lists 
associated with the document is 100 or more), in addition to 
identifying the titles in the paper submission, the remitting party may 
also submit an electronic list (or lists) setting forth each such 
title, as provided herein. The electronic list(s) shall not be 
considered a part of the recorded document and shall function only as a 
means to index titles and other information associated with the 
recorded document.
    (i) Method of submitting electronic title lists. Absent a special 
arrangement with the Office, the electronic list must be included in 
the same package as the paper document to be recorded. The list must be 
prepared in a format consistent with the requirements of subparagraph 
(ii) of this paragraph (4), and stored on a compact disc, flash drive, 
or other digital storage medium approved by the Copyright Office that 
is clearly labeled with the following information: the name of the 
remitting party, the name of the first party listed in the paper 
document, the first title listed in the paper document, the number of 
titles included in the paper document, and the date the remitting party 
mailed or delivered the paper document.
    (ii) Format requirements for electronic title lists. Any electronic 
list of titles submitted pursuant to paragraph (c)(4) shall conform to 
the requirements of this subparagraph. The electronic list of titles 
shall:
    (A) Consist of a table contained in an electronic file in Excel 
(.xls) format or an equivalent electronic format approved by the 
Office;
    (B) include only letters, numbers, and printable characters that 
appear in the ASCII 128-character set;
    (C) include four columns respectively entitled, from left to right, 
Article, Title, Authorship Information, and Registration Number(s);
    (D) list each title on a separate row of the electronic table, and 
include the following information for each title in the appropriate 
column, as applicable:
    (1) First column: Article. If the title of the work begins with one 
of the articles specified in the following list, the article should be 
separated from the title and placed in this column. If the title does 
not begin with one of the specified articles, the column must still be 
included, but this field should be left blank. The list of leading 
articles is as follows:

    English: A, An, The
    Spanish: Un, Una, El, La, Lo, Las, Los
    French: L', Le, La, Les, Un, Une
    German: Der, Die, Das, Einer, Eine, Ein

    (2) Second column: Title. The title of the work, not including any 
leading article;
    (3) Third column: Authorship Information. The word ``By'' followed 
by the author or authors of the work. Where applicable, include 
designations such as ``performer known as'' or ``also known as,'' or 
the abbreviated form of such designations. Abbreviated designations 
must omit any punctuation between letters, for example ``pka'' (not 
``p/k/a''); and
    (4) Fourth column: Registration Number(s). The copyright 
registration number or numbers. This field is optional; if registration 
numbers are not being supplied for any title in the submission, this 
column should still be included, but left blank. Regardless of how they 
appear in the paper document, registration numbers included in the 
electronic list must be twelve characters long, must include a two- or 
three-letter prefix, and must not include spaces or hyphens. If a given 
registration number consists of fewer than twelve characters in the 
original, the remitting party should add leading zeroes to the numeric 
portion of the registration number before adding it to the list. For 
example, a published work with the registration number ``SR-320-918'' 
should be transcribed into the electronic list as ``sr0000320918,'' and 
an unpublished work with the registration number ``VAu-598-764'' should 
be transcribed into the electronic list as ``vau000598764.''
    (iii) Remitters to bear consequences of inaccurate electronic title 
lists. The Office will rely on the electronic list of titles for 
purposes of indexing recorded documents in the Public Catalog and the 
remitter will bear the consequences of any inaccuracies in the 
electronic list in relation to the recorded document, including with 
respect to whether there is effective constructive notice or priority 
under 17 U.S.C. 205(c). For example, omission of a title from the 
electronic list such that the title is not properly indexed may affect 
the ability to claim that the public had constructive notice with 
respect to that title, even if the title appears in the paper document. 
If a title appears in the electronic list but is not included in the 
paper document that is actually recorded, the paper document will 
control.
    (iv) Treatment of improperly prepared electronic title lists. The 
Office reserves the right to reject an electronic title list from any 
party that is shown to have submitted an improperly prepared file.
* * * * *
    (f) Return Receipt. If, with a document submitted for recordation, 
a remitter includes two copies of a properly completed Recordation 
Document Cover Sheet (Form DCS) indicating that a return receipt is 
requested, as well as a self-addressed, postage-paid envelope, the 
remitter will receive a date-stamped return receipt acknowledging the 
Copyright Office's receipt of the enclosed submission. The completed 
copies of Form DCS and self-addressed, postage-paid envelope must be 
included in the same package as the submitted document. A return 
receipt confirms the Office's receipt of the submission as of the date 
indicated, but does not establish eligibility for, or the date of, 
recordation.

    Dated: July 10, 2014.
Jacqueline C. Charlesworth,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2014-16726 Filed 7-15-14; 8:45 am]
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