Modernizing Copyright Recordation, 52213-52221 [2017-24527]

Agencies

• Library of Congress
• U.S. Copyright Office

[Federal Register Volume 82, Number 217 (Monday, November 13, 2017)]
[Rules and Regulations]
[Pages 52213-52221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-24527]


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LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Part 201

[Docket No. 2017-7]


Modernizing Copyright Recordation

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

ACTION: Interim rule.

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SUMMARY: The United States Copyright Office is issuing an interim rule 
amending its regulations governing recordation of transfers of 
copyright ownership, other documents pertaining to a copyright, and 
notices of termination. The interim rule adopts a number of the 
regulatory updates proposed in the notice of proposed rulemaking 
published on May 18, 2017.

DATES: Effective December 18, 2017.

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

SUPPLEMENTARY INFORMATION: 

I. Background

    Under the Copyright Act of 1976, the U.S. Copyright Office is 
responsible for recording documents pertaining to works under 
copyright, such as assignments, licenses, and grants of security 
interests.\1\ The Office is also responsible for recording notices of 
termination.\2\ As discussed in a notice of proposed rulemaking 
published in the Federal Register on May 18, 2017 (``NPRM''),\3\ the 
current recordation process is a time-consuming and labor-intensive 
paper-based one, requiring remitters to submit their documents in hard 
copy.
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    \1\ 17 U.S.C. 205.
    \2\ A ``notice of termination'' is a notice that terminates a 
grant to a third party of a copyright in a work or any rights under 
a copyright. Only certain grants may be terminated, and only in 
certain circumstances. Termination is governed by three separate 
provisions of the Copyright Act, with the relevant one depending on 
a number of factors, including when the grant was made, who executed 
it, and when copyright was originally secured for the work. See 17 
U.S.C. 203, 304(c), 304(d).
    \3\ 82 FR 22771 (May 18, 2017).
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    The Office is engaged in an effort to modernize the recordation 
process in coming years by developing a fully electronic, online system 
through which remitters will be able to submit their documents and all 
applicable indexing information to the Office for recordation. In 
conjunction with the anticipated development effort, the Office issued 
the NPRM to propose updates to the Office's current regulations to 
govern the submission of documents to the Office for recordation once 
the new electronic system is developed and launched. The NPRM explained 
that while the Office could not estimate when the new system would be 
completed, public comments were being sought because the Office needed 
to make a number of policy decisions critical to the design of the to-
be-developed system.\4\
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    \4\ Id. at 22771.
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    In addition, as most relevant here, the NPRM further stated that 
while the proposed amendments were designed with a new electronic 
submission system in mind, at least some of the proposed changes could 
be implemented in the near future, without the new system. Thus, the 
Office noted that, to the extent possible under the Office's current 
paper system, the Office intended to adopt some aspects of the proposed 
rule on an interim basis until such time as the electronic system is 
complete and a final rule is enacted.\5\
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    \5\ Id. at 22771-72.
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II. Interim Rule

    As indicated in the NPRM, this interim rule adopts those provisions 
described in the NPRM that the Office believes will help streamline the 
recordation process prior to completion of the new electronic 
recordation system.
    Unlike a typical interim rule, this one is being promulgated 
following a notice of proposed rulemaking and a period for public 
comment. In response to the NPRM, the Office received thirteen comments 
from a variety of stakeholders.\6\ As this interim rule does not cover 
every issue raised by the NPRM or the commenters, the Office reserves 
judgment on any matters not expressly discussed herein and no inference 
should be drawn from the Office's silence on any particular point. 
Additionally, the Office reserves the right to issue other interim 
rules during the course of developing the system. The comments received 
in response to the NPRM not addressed by this interim rule will 
continue to be evaluated by the Office as system development 
progresses. The Office intends to issue a final rule under this same 
rulemaking docket in connection with the public release of the new 
system.
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    \6\ The commenters are Author Services, Inc., Authors Alliance, 
Copyright Alliance, CSC, Dale Adams, Entertainment Software 
Association (``ESA''), Intellectual Property Owners Association, 
Kernochan Center for Law, Media and the Arts (``Kernochan''), Motion 
Picture Association of America, Inc. (``MPAA''), ``Music Parties'' 
(joint comment by American Association of Independent Music, 
Recording Industry Association of America, Inc., and National Music 
Publishers' Association), Music Reports, Inc. (``MRI''); Sergey 
Vernyuk, and Software and Information Industry Association 
(``SIIA'').
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    While some discrete aspects of the proposed rule were opposed, most 
were either unopposed or affirmatively supported. As such, except as 
otherwise discussed below, the proposed rule is being adopted largely 
for the reasons discussed in the NPRM.\7\ As stated in the NPRM, the 
general mechanics of the new regulations are essentially the same as 
under the Office's current rules and policies.\8\ To be eligible for 
recordation, the document or notice of termination must satisfy certain 
requirements, be

[[Page 52214]]

submitted properly, and be accompanied by the applicable fee. As 
before, the date of recordation will be the date when all of the 
required elements are received by the Office, and the Office may reject 
any document or notice submitted for recordation that fails to comply 
with the statute or the Office's rules or instructions. While 
recordation of section 205 documents is optional, pursuant to statute, 
notices of termination must be recorded with the Office ``as a 
condition to its taking effect.'' \9\
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    \7\ See generally 82 FR 22771.
    \8\ See id. at 22772, 22776.
    \9\ 17 U.S.C. 203(a)(4)(A), 304(c)(4)(A), 304(d)(1).
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A. Transfers of Copyright Ownership and Other Documents Pertaining to a 
Copyright

    Cover Sheet and Electronic Title Lists. As was proposed,\10\ the 
interim rule requires paper submissions to be accompanied by a cover 
sheet that is similar to the current Form DCS. In addition to the 
information currently collected, the new Form DCS asks for some minor 
additional indexing information and has some additional checkboxes to 
help with the document examination process. Additionally, the various 
required certifications discussed below can also be made using Form 
DCS. Having all of this information in one place will benefit remitters 
by aiding them in confirming that their submissions are complete and 
comply with the requirements for recordation. It should also benefit 
the Office by making the examination process more efficient, as 
examiners will no longer need to search through the document itself to 
find this indexing information.
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    \10\ 82 FR at 22772.
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    Also as proposed,\11\ remitters may continue to provide electronic 
lists of certain indexing information about the works to which the 
document pertains. As the NPRM discussed, much of the current 
regulation's details surrounding the formatting of electronic title 
lists are being removed. Instead, the interim rule states that such 
lists must be prepared and submitted in the manner specified by the 
Office in instructions it will post on its Web site. This change will 
allow the Office to develop more flexible instructions for remitters 
that can be updated and modified as needed without resorting to a 
rulemaking. No commenter objected to this proposed change.
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    \11\ Id.
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    Originals, Copies, and Actual Signatures. One of the more 
significant proposals the Office made in the NPRM dealt with the 
treatment of original documents versus copies, and the definition of 
``actual signature.'' \12\ The Office proposed to continue requiring, 
in accordance with section 205(a), that to record a document, remitters 
must submit either the original document ``bear[ing] the actual 
signature of the person who executed it'' or a ``true copy of the 
original, signed document'' accompanied by a ``sworn or official 
certification.'' In discussing the application of the statute to 
electronic documents and electronic signatures, the NPRM proposed that 
to avoid any doubt about the sufficiency of a recordation on the basis 
of whether or not the submitted document is an original or a copy, the 
Office would consider any document either submitted electronically 
through the new system, or lacking a handwritten, wet signature (e.g., 
any document bearing an electronic signature) to be a ``copy'' within 
the meaning of section 205.\13\ The Office noted that, in practice, 
this would be unlikely to significantly affect remitters, as the only 
consequence is that each such submission would need to be accompanied 
by a sworn or official certification. As no commenter objected, the 
Office is adopting this as part of the interim rule, to the extent 
applicable to the current paper-based submission process.
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    \12\ Id. at 22772-74.
    \13\ Id. at 22772-73.
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    The NPRM also proposed a definition of the statutory term ``actual 
signature.'' \14\ As discussed in the NPRM, that term has been 
undefined in the Office's regulations, but in practice, the Office has 
required original documents to bear handwritten, wet signatures and 
copies of documents to reproduce such handwritten, wet signatures. 
Electronic signatures have not been permitted. After analyzing the 
issue, the Office concluded that its regulations and processes should 
be flexible enough to permit any document that may constitute a 
transfer of copyright ownership under section 204 of the Copyright Act 
to be recordable under section 205. Thus, the Office proposed defining 
``actual signature'' as any legally binding signature, including an 
electronic signature as defined by the E-Sign Act.\15\
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    \14\ Id. at 22773.
    \15\ Id. The E-Sign Act defines ``electronic signature'' as ``an 
electronic sound, symbol, or process, attached to or logically 
associated with a contract or other record and executed or adopted 
by a person with the intent to sign the record.'' 15 U.S.C. 7006(5). 
While Copyright Alliance and MPAA supported this proposed 
definition, they asked that the Office not create any requirements 
above and beyond what is required in the E-Sign Act. See Copyright 
Alliance Comments at 2; MPAA Comments at 2. The interim rule adopts 
the very broad definition of ``any legally binding signature'' and 
merely refers to the E-Sign Act as an example of something that 
would be included within that definition. The Office did not mean to 
imply that the various requirements applicable to the E-Sign Act 
were being imported into the Office's new definition of ``actual 
signature.''
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    In connection with this proposal, the Office explained that it 
disagreed with the suggestion from Professor Brauneis's report, 
Transforming Document Recordation at the United States Copyright 
Office, that the signature be in a ``discrete and identifiable form'' 
on the remitted document.\16\ Instead, the Office proposed resolving in 
another way Professor Brauneis's concern that having too broad a 
definition could potentially include ``acts that do not generate a 
trace that is easily remitted as `a signature' on `a document.' '' \17\ 
The Office proposed that rather than restrict the definition of 
signature, the rule should require that where an actual signature is 
not a handwritten or typewritten name, such as when an individual 
clicks a button on a Web site or application to indicate agreement to 
contractual terms, the remitter should be required to submit evidence 
demonstrating the existence of the signature, such as by appending a 
database entry or confirmation email to a copy of the terms showing 
that a particular user agreed to them by clicking ``yes'' on a 
particular date.\18\
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    \16\ 82 FR at 22773 (quoting Robert Brauneis, Transforming 
Document Recordation at the U.S. Copyright Office 66 (Dec. 2014), 
https://www.copyright.gov/docs/recordation/recordation-report.pdf. 
[hereinafter Brauneis Report]).
    \17\ 82 FR at 22773 (quoting Brauneis Report at 66).
    \18\ Id. at 22773.
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    To the extent discussed by commenters, the Office's proposal on 
these issues was largely supported.\19\ One commenter, however, took 
issue with the Office's proposal not to limit signatures to those in a 
``discrete and identifiable form'' on the remitted document.\20\ That 
commenter stated that the text of sections 204 and 205 contain 
materially different requirements and that, while in section 204, 
Congress adopted a more flexible writing requirement that would 
ultimately be tested in an adversarial environment, in section 205, 
Congress was narrower to create more certainty that if the requirements 
are met one would receive the enumerated benefits of recordation.\21\ 
The commenter contended that the result of the proposed rule would be 
that the scope of section 205 would be improperly

[[Page 52215]]

subsumed by section 204 (and vice versa).\22\
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    \19\ See Copyright Alliance Comments at 2; MPAA Comments at 2; 
Music Parties Comments at 4; Sergey Vernyuk Comments.
    \20\ SIIA Comments at 2-5.
    \21\ Id. at 4.
    \22\ Id. at 5.
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    The Office disagrees. Section 204 describes what is necessary for a 
transfer of copyright ownership to be valid and section 205 states 
explicitly that ``[a]ny transfer of copyright ownership . . . may be 
recorded.'' \23\ Thus, any transfer that is valid under section 204 
should be recordable under section 205.\24\ As explained in the NPRM, 
the recordation requirement of an ``actual signature'' merely 
distinguishes the signature on the original document from the 
reproduction of that signature on a copy of the document, and is not 
meant to limit the type of signature a document must have in order to 
be recorded.\25\
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    \23\ See 17 U.S.C. 204, 205.
    \24\ See Report of the Register of Copyrights on the General 
Revision of the U.S. Copyright Law 95-96 (Comm. Print. 1961) (in 
recommending that what would become the current Copyright Act 
``require explicitly that any instrument filed for recordation bear 
the actual signature of the person executing it or a sworn or 
official certification that it is a true copy of the original signed 
instrument''--which closely resembles the current text of section 
205(a)--the report makes clear that the original intent was that 
``the recordation system should embrace all instruments by which the 
ownership of a copyright is transferred in whole or in part'').
    \25\ See 82 FR at 22773-74; see also Report of the Register of 
Copyrights on the General Revision of the U.S. Copyright Law 96 
(Comm. Print. 1961) (explaining that the reason for requiring an 
``actual signature'' is because ``[t]here should be practical 
assurance that the instrument recorded is precisely the same as the 
one executed'').
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    Accordingly the Office's interim rule essentially adopts the 
approach set forth in the NPRM, including the definition of ``actual 
signature'' as proposed. The interim rule provides that where a 
signature is not a handwritten or typewritten name, to be recordable, 
the remitter must provide a description of the nature of the signature 
and whatever evidence is necessary to demonstrate the existence of the 
signature. At the same time, the Office recognizes that, in the case of 
signatures that are not discrete and identifiable, it may prove 
difficult in practice for recordation examiners to determine on a case-
by-case basis whether a document has been actually signed. Thus, the 
Office will not evaluate the evidence submitted in such cases, but will 
presume that the signature requirement has been satisfied and record 
the document (if all other requirements for recordation have been met). 
The Office will also make any of the ancillary material submitted 
available for public inspection. The interim rule makes clear, however, 
that this presumption is without prejudice to any party claiming that 
the document was not signed, including in court.
    Certifications. Given the general lack of opposition to the 
proposed rule's various certification requirements, they are being 
adopted for the reasons provided in the NPRM, except as noted 
below.\26\ Thus, under the interim rule, remitters are required to 
provide essentially two sets of certifications. First, the remitter 
must personally certify that he or she has appropriate authority to 
submit the document for recordation and that the indexing and other 
information submitted to the Office by the remitter is true, accurate, 
and complete to the best of the remitter's knowledge. These remitter-
related certifications concern the remitter's authority to make the 
recordation and the veracity of the indexing and other information 
provided as a part of the submission; the certifications do not pertain 
to the actual document being submitted for recordation. The remitter 
can make these certifications by signing, either electronically or by 
hand, the required cover sheet.
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    \26\ See 82 FR at 22774.
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    Second, the interim rule requires certifications related to the 
document itself: That the actual document being submitted for 
recordation conforms to the Office's signature,\27\ completeness, 
legibility, and redaction rules and, where the document is a copy, that 
it be accompanied by an official or sworn certification.\28\ These 
document-related certifications generally can be made by either the 
remitter or another individual on the cover sheet submitted with the 
document to the Office.\29\ An official certification, however, would 
need to be attached separately.
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    \27\ While the proposed rule did not specifically include a 
certification concerning the signature, the Office believes that 
having one will aid the Office's examination just as much as the 
other proposed certifications, especially in light of the adopted 
definition of ``actual signature.''
    \28\ The interim rule does not substantively alter the 
definition of ``official certification,'' but clarifies that it can 
be signed electronically. The interim rule does, however, simplify 
the definition of ``sworn certification,'' as was proposed, 82 FR at 
22774, while also making the same clarification regarding electronic 
signatures.
    \29\ Commenters affirmatively supported having pre-printed 
certifications. See Authors Alliance Comments at 5; Sergey Vernyuk 
Comments. They also supported allowing a sworn certification to be 
made to the best of the certifier's knowledge. See Authors Alliance 
Comments at 5; Sergey Vernyuk Comments; see also 82 FR at 22774.
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    While one commenter voiced concerns that having two sets of 
certifications that can be made by different individuals could be 
confusing and burdensome,\30\ the Office believes the commenter may 
have misunderstood the Office's proposed approach. The commenter asked 
that the Office allow a single representative to make both sets of 
certifications.\31\ That is exactly what the Office intended. Where a 
single person is in a position to make both the remitter-related and 
document-related certifications, he or she can make them all on the 
document cover sheet submitted with the document to the Office. The 
Office's rules permit different people to make the two sets of 
certifications simply to provide more flexibility to parties in the 
event, for example, the person filling out the document cover sheet and 
remitting the document is not in a position to make the document-
related certifications (e.g., if the remitter is a paralegal or an 
administrative assistant without knowledge of the underlying document). 
Only in that case would two individuals be making the separate 
certifications. And even in that case, the remitter would still sign 
the document cover sheet for the remitter-related certifications; the 
other individual would make the document-related certifications on a 
separate page of the cover sheet.
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    \30\ Music Parties Comments at 4.
    \31\ Id.
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    As to the Office's proposed expansion of the categories of people 
who can make a sworn certification to include any person having an 
interest in a copyright to which the document pertains, as well as such 
person's authorized representative, one commenter partially objected. 
The commenter agreed that successors-in-interest to the original 
parties and their representatives should be permitted, but took issue 
with permitting third-party beneficiaries to make the certification, 
voicing concerns of fraud and/or error by those who mistakenly believe 
or fraudulently represent themselves as deriving some incidental 
benefit from a document to be recorded.\32\ On further reflection, the 
Office believes that including third-party beneficiaries is not 
necessary. The main impetus for the expansion was to cover the types of 
scenarios noted by the Brauneis Report,\33\ which would be covered by 
successors-in-interest.\34\ As was originally proposed,\35\ the Office 
is requiring that any authorized representative specify who they 
represent and that successors-in-interest

[[Page 52216]]

briefly describe the nature of their relationship to the document or 
the original parties to the document.\36\
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    \32\ Id.
    \33\ See 82 FR at 22774.
    \34\ See Brauneis Report at 67 (providing examples of wills 
where the testator is deceased and documents in the current owner's 
chain of title but which were executed by predecessors-in-interest). 
While one commenter voiced support for the proposed rule, third-
party beneficiaries were not specifically discussed. See Authors 
Alliance Comments at 5.
    \35\ 82 FR at 22774-75.
    \36\ See Music Parties Comments at 4 (recommending that 
successors-in-interest ``describe their relationship to the document 
or to the signatories to the document'').
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    Completeness and Legibility. In response to the NPRM's proposal on 
completeness and legibility, the Office received a technical suggestion 
on the provision's wording that the Office agrees with.\37\ Thus, as 
under current regulations, the Office will continue to require 
documents submitted for recordation to be complete and legible. But as 
the NPRM proposed, the completeness requirement is being simplified to 
mandate that, while the document must be complete by its terms, it need 
only include referenced schedules, appendices, exhibits, addenda, or 
other material essential to understanding the copyright-related aspects 
of the document.\38\ This is a change from current practice, where the 
Office requires documents to include all schedules, or provide an 
explanation for why such material cannot be provided. Thus, under the 
interim rule, if, for example, a document has several schedules, but 
only one has any relevance to the copyright-related terms of the 
agreement, the document would be deemed complete so long as that 
schedule is included; the other schedules can be omitted. The Office 
sees no reason to burden remitters with having to submit, and Office 
staff with reviewing, what can often be a significant volume of 
material completely unrelated to the copyright terms of the document.
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    \37\ See MPAA Comments at 6.
    \38\ 82 FR at 22775.
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    Redactions. The NPRM proposed adopting rules governing redactions 
of documents, generally limiting redactions to certain enumerated 
categories of sensitive information, including financial, trade secret, 
and personally identifiable information.\39\ The NPRM further proposed 
allowing remitters to request in writing the ability to redact other 
information from a document, which the Office may permit at its 
discretion. The proposal also required that blank or blocked-out 
portions of the document be labeled ``redacted'' or an equivalent; that 
all portions of the document required by the simplified completeness 
requirement be included (even if an entire page is redacted); and that 
upon request, for review purposes, the remitter may be required to 
supply the Office with an unredacted copy of the document or additional 
information about the redactions. Most commenters discussing redactions 
took issue with this last requirement to provide the Office with an 
unredacted copy of the document or additional information about the 
redactions, voicing serious security, privacy, and confidentiality 
concerns with the Office receiving, having access to, and storing such 
sensitive materials.\40\ While one commenter did support the 
proposal,\41\ the Office has decided to not include this part of the 
provision in the interim rule, especially given that the Office was 
unlikely to require such information in the majority of cases. The 
Office cautions, however, that, as commenters pointed out, over-
redacting a document may affect constructive notice under section 
205(c).\42\
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    \39\ Id.
    \40\ See Copyright Alliance Comments at 3; ESA Comments at 4; 
MPAA Comments at 4; Music Parties Comments at 4-5.
    \41\ See Kernochan Comments at 2 (``[A]ll material should be 
made available to the USCO if the USCO so requests.'').
    \42\ See ESA Comments at 4 (noting that ``remitters are 
motivated by Section 205(c) not to redact information relevant to 
the purposes of recordation''); Music Parties Comments at 4-5 
(``Section 205(c) . . . provides a strong incentive for remitters to 
redact only material that is irrelevant to the purposes of 
recordation.'').
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    Additionally, one commenter also asked that if an unredacted 
document is submitted accidentally that there be a simple process to 
replace it with a properly redacted one.\43\ This would essentially be 
a type of correction. As such, the Office will more fully consider it 
in connection with its evaluation of the final rule on treatment of 
corrections going forward (see Correcting Errors below). The same 
commenter also suggested that the Office add more flexibility to the 
proposed rule by adding the phrase ``other similarly sensitive 
information'' to the acceptable categories of redactable 
information.\44\ The Office declines to adopt this suggestion at this 
time. Other commenters agreed with the proposed categories, and the 
ability to make a written request to redact other information should 
provide an adequate mechanism through which remitters can seek 
additional redactions without having a catch-all provision.\45\ The 
Office, however, will evaluate whether it is regularly receiving 
written requests to redact additional categories of information as part 
of the interim rule, and take that into account when formulating the 
final rule.
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    \43\ MPAA Comments at 4.
    \44\ Id.
    \45\ See ESA Comments at 4 (``[T]his rule generally provides an 
appropriate framework for addressing cases where a document contains 
sensitive information.''); MRI Comments at 5 (``These data 
categories are appropriate for redaction.''); Music Parties Comments 
at 4 (``We generally agree with the proposed approach to redactions. 
Allowing financial, trade secret and personally identifiable 
information to be redacted as of right and other information to be 
redacted at the discretion of the Office should meet the needs of 
remitters.'').
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    English Language Requirement. In the NPRM, the Office proposed to 
continue accepting and recording non-English language documents only if 
accompanied by an English translation signed by the individual making 
the translation.\46\ The Office further proposed to extend the 
translation requirement to any indexing information provided by the 
remitter. Because the Office did not receive any objections to this 
aspect of the proposed rule, and one commenter affirmatively supported 
it,\47\ it is being adopted as part of the interim rule. One commenter 
did, however, ask the Office to also permit translations made by 
software or automated translation services.\48\ The Office agrees, and 
has included such a provision in the interim rule. This adjustment 
should make it easier and less costly to provide a translation. As to 
any concerns about accuracy, the Office notes that it may reject a 
translation if it is unintelligible, whether made by a person or 
through the use of software or automated service.
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    \46\ 82 FR at 22775.
    \47\ See Sergey Vernyuk Comments.
    \48\ See Copyright Alliance Comments at 3.
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    The Office would also like to clarify that even though the 
translation requirement is being expanded to indexing information, the 
Office does not intend to change its current practices concerning non-
English titles of works at this time. If a non-English title of a work 
is natively spelled using only the letters, numbers, and printable 
characters that appear in the ASCII 128-character set (the character 
set the Office's current systems are limited to), a translation need 
not be provided, and if one is, the Office will index both the English 
and non-English titles of the work. If a non-English title is spelled 
using characters outside that character set (for example, it is in 
French but has accented letters, or is in Japanese), a transliteration 
using the ASCII 128-character set may be provided instead of or in 
addition to a literal translation. Where both a translation and 
transliteration are provided, both will be indexed as related titles.
    Constructive Notice. The proposed rule sought to make clear that 
for constructive notice under 17 U.S.C. 205(c) to attach with regard to 
works to which a recorded document pertains, the document must include 
or be accompanied by the title and copyright

[[Page 52217]]

registration number of each such work.\49\ The Office received several 
comments objecting to the proposed rule on the ground that it is 
inconsistent with the statute, which they contended only requires that 
a title or registration number be provided for constructive notice to 
attach.\50\ The Office is continuing to evaluate its proposal and these 
comments, including by closely examining the relevant legislative 
history to better discern the intent behind the statutory provision. 
For now, the Office declines to adopt a rule interpreting section 
205(c). Nothing should be inferred from the Office's proposed provision 
or the Office's decision not to adopt a rule at this time.
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    \49\ 82 FR at 22776.
    \50\ See Author Services Comments at 1; Copyright Alliance 
Comments at 4-5; ESA Comments at 4-5; MPAA Comments at 4-6; Music 
Parties Comments at 7; SIIA Comments at 5-6.
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B. Notices of Termination

    Commenters did not object to any of the proposed submission 
requirements or procedures for recording notices of termination, and 
the proposals have largely been adopted. As the NPRM discussed, the 
requirements governing what must be submitted to the Office to record a 
notice of termination are remaining essentially unchanged.\51\ Thus, 
under the interim rule, as under the pre-existing rule, remitters are 
required to provide a complete and legible copy of the signed notice of 
termination as served on the grantee or successor-in-title. If separate 
copies of the same notice were served on more than one grantee or 
successor, only one copy needs to be submitted to the Office for 
recordation. The interim rule also maintains the requirement that 
remitters submit a statement setting forth the date on which the notice 
was served and the manner of service, unless that information is 
already contained within the notice itself. The interim rule also makes 
clear that, as previously, where service was made by first class mail, 
the date of service is the day the notice was deposited with the post 
office. The Office's timeliness rule also remains unchanged, and the 
Office will continue to refuse notices if they are untimely. Such 
scenarios where a notice would be deemed untimely include when the 
effective date of termination does not fall within the five-year period 
described in section 203(a)(3) or section 304(c)(3), as applicable, the 
documents submitted indicate that the notice was served less than two 
or more than ten years before the effective date of termination, and 
the date of recordation is after the effective date of termination.
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    \51\ 82 FR at 22776-77.
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    As proposed,\52\ the interim rule clarifies that however the notice 
is signed, what must be submitted to the Office for recordation is a 
copy of the as-served notice, including the reproduced image of the 
signature as it appeared on that served notice. The interim rule also 
adds new certification requirements, as had also been proposed.\53\ 
Lastly, as the NPRM discussed,\54\ remitters are now required to 
include a cover sheet with any notice of termination submitted for 
recordation. This Recordation Notice of Termination Cover Sheet (``Form 
TCS'') is similar to and serves the same function as Form DCS does for 
section 205 document submissions. Form TCS asks for information about 
the remitter and for certain indexing information. It also includes a 
space for the remitter to provide a statement of service and make the 
required certifications.
---------------------------------------------------------------------------

    \52\ Id.
    \53\ Id. at 22777.
    \54\ Id.
---------------------------------------------------------------------------

C. Correcting Errors

    In the NPRM, the Office indicated that it was inclined to continue 
its current general practice of not permitting corrections to be made 
for any remitter-caused inaccuracies after the document or notice is 
recorded.\55\ Instead, the Office proposed that, as is the current 
practice, the remitter would need to resubmit the document or notice 
for recordation with corrected information and it would be treated as 
any other first-time-submission. For purposes of uniformity and 
efficiency, the NPRM proposed discontinuing permitting corrections for 
inaccurate electronic title lists that accompany paper filings.\56\ The 
Office explained that such errors should be treated the same as those 
made on the cover sheet or through the new electronic system. Lastly, 
the NPRM concluded that to have an efficient recordation system with an 
affordable fee, it would simply be impractical for Office staff to 
review all remitter-provided indexing information, which also means 
that it would be very difficult to review ``corrected'' submissions 
against the original to confirm that the remitter is not attempting to 
do something improper under the guise of a correction.\57\
---------------------------------------------------------------------------

    \55\ Id. at 22776, 22777.
    \56\ Id. at 22776.
    \57\ Id.
---------------------------------------------------------------------------

    The Office received comments asking that corrections be permitted 
under various circumstances.\58\ The Office is still evaluating these 
comments and has not yet made a decision on this issue. For purposes of 
the interim rule, the Office is not changing the status quo for 
correcting information after a recordation has been completed. As a 
result, a slightly modified version of the current provision permitting 
corrections for electronic title lists has been retained. Mirroring the 
interim rule's approach to preparing and submitting electronic title 
lists, the interim rule also omits the current instructions that detail 
how to submit a corrective filing and instead states that a correction 
concerning an electronic title list may be requested by following the 
instructions provided by the Office on its Web site.
---------------------------------------------------------------------------

    \58\ See Copyright Alliance Comments at 3; ESA Comments at 5-6; 
MPAA Comments at 4; Music Parties Comments at 3, 5-6.
---------------------------------------------------------------------------

D. Consequences of Inaccuracies

    In the NPRM, the Office said that it intended to continue its 
current practice of relying on the information provided by remitters 
for indexing purposes and requiring parties-in-interest to bear the 
consequences of any inaccuracies in such remitter-provided 
information.\59\ The NPRM also clarified that it is not necessarily 
always the remitter who bears the consequences of inaccuracies, but 
rather, more accurately, it is the parties in interest to the remitted 
document or notice of termination who bear the consequences, if any, of 
any inaccuracies in the information provided to the Office by the 
remitter.
---------------------------------------------------------------------------

    \59\ 82 FR at 22775-76.
---------------------------------------------------------------------------

    Based on the comments received, the Office has decided to eliminate 
the part of the proposed rule stating that parties-in-interest to a 
document or notice bear the consequences, if any, of any inaccuracies 
in the information the remitter provides to the Office. In response to 
the NPRM, some commenters expressed confusion over who really bears the 
consequences in the notice of termination context, while another 
commenter pointed out that non-parties may also bear the consequences 
if they rely to their detriment on incomplete or inaccurate recordation 
information.\60\ The Office did not intend for the proposed rule to be 
an assignment of risk or responsibility to a particular party to a 
transaction, but merely meant to make clear that the Copyright Office 
bears no responsibility for errors caused by a remitter. To avoid any 
confusion, the

[[Page 52218]]

Office has removed the provision. But, to be clear, the Office bears no 
responsibility or liability if a remitter provides inaccurate indexing 
information that is then relied upon by the Office in indexing the 
document.
---------------------------------------------------------------------------

    \60\ See ESA Comments at 6; MRI Comments at 4-5; Music Parties 
Comments at 7. Another commenter added that the proposed 
modification would seem to place the burden on any and every party 
to a document to regularly and continually check the Office's 
records to ensure no one has submitted inaccurate information. 
Sergey Vernyuk Comments.
---------------------------------------------------------------------------

    One commenter also asked that the Office adopt a rule stating that 
when a non-party relies to its detriment on incomplete or inaccurate 
recordation records, it should constitute evidence that any resulting 
infringement was not willful.\61\ The Office declines to adopt such a 
rule. It is for a court to determine willfulness in an infringement 
action based on all of the particular facts at issue in a given case.
---------------------------------------------------------------------------

    \61\ MRI Comments at 4-5.
---------------------------------------------------------------------------

    Concerning the Office's reliance on remitter-provided material, the 
Office did not receive any comments critical of the proposed rule. 
Consequently, that portion of the provision is being retained. The 
interim rule makes slight changes to the proposed version of the 
provision to clarify that the Office will not only rely on remitter-
provided indexing information, but also on the certifications that 
accompany a document or notice and any other remitter-provided 
information. The interim rule also makes plain that what the Office 
means by reliance is that it may not necessarily confirm the accuracy 
of any such certifications or information against the actual document 
itself.

E. Recordation Certificate and Returning of Document

    As before, once recorded, the document or notice of termination 
will be returned to the remitter with a certificate of recordation. 
Currently, all recorded documents and notices are digitally imaged and 
electronically stamped with an official recordation number and page 
numbers. This stamped copy is then printed and sent to the remitter 
with a paper recordation certificate. Where an original document is 
submitted, it is also returned. The Office plans to continue under this 
paper-based process while the new electronic recordation system is 
being developed.

F. Scope of Office's Examination and Effect of Recordation

    One commenter inquired into the level of review the Office performs 
in examining recordation submissions, noting that it interpreted the 
NPRM's proposed language about parties bearing the consequences of 
their inaccuracies to indicate that the Office will not review 
submitted materials for accuracy or completeness.\62\ The commenter 
recommended that if that is not the Office's intent, that the Office 
follow the recommendation from the Brauneis Report,\63\ which suggested 
that the Office cease screening each individual remitted document for 
compliance with the various recordation requirements.\64\ The report 
recommended that remitters instead should certify that a document 
satisfies all of the requirements for recordation, and that the Office 
only ``spot-screen'' a sample of submissions to identify systematic 
problems, with the goal of trying to reduce them through corrective 
measures like better education.\65\ The report did note, however, that 
some particular types of submissions, such as notices of termination, 
might still warrant document-by-document examination.\66\
---------------------------------------------------------------------------

    \62\ Kernochan Comments at 2.
    \63\ Id.
    \64\ Brauneis Report at 58, 84.
    \65\ Id.
    \66\ Id.
---------------------------------------------------------------------------

    While the Office declines to adopt this exact approach at this 
time, the Office has decided to implement something similar. The Office 
agrees that it need not exhaustively review every recordation 
submission for compliance with all applicable laws, rules, and 
instructions, but there is a benefit to both remitters and the public 
at large in the Office at least examining submissions individually for 
facially obvious deficiencies \67\ so as to ensure that the majority of 
recorded documents and notices of termination are in compliance with 
the legal and formal requirements for recordation.\68\ As discussed 
above, and in line with the Brauneis Report's recommendation, the 
Office is requiring various certifications and certain indexing 
information to be provided to the Office that, as the interim rule 
makes clear, the Office will not necessarily check against the remitted 
document or notice itself. While the Office intends to only examine 
submissions for facially obvious deficiencies, it may continue to 
perform a more comprehensive review, such as for notices of 
termination, at its discretion. Likewise, the Office also reserves the 
right to engage in a less comprehensive review, closer to what the 
Brauneis Report recommended, as a matter of administrative convenience.
---------------------------------------------------------------------------

    \67\ To be clear, the Office means only those deficiencies 
pertaining to the requirements for recordation; not other types of 
deficiencies that could affect the underlying validity or legal 
effectiveness of the document or notice. See U.S. Copyright Office, 
Compendium of U.S. Copyright Office Practices, sec. 2305 (3d ed. 
2017) (``Members of the general public who submit documents for 
recordation cannot expect the Office to screen a document for even 
obvious errors or discrepancies. Therefore, parties are strongly 
advised to review and scrutinize any document to ensure that the 
document is legally sufficient to accomplish the purpose for which 
it is intended before it is submitted for recordation.'').
    \68\ This is in contrast to, for example, examining applications 
for copyright registration. Registering a work involves a 
substantive determination by the Office as to a work's 
copyrightability and can constitute prima facie evidence of a valid 
copyright. See 17 U.S.C. 410(a)-(c). Recordation is a more 
ministerial act, akin to the Office's acceptance of other types of 
filings for inclusion in the public record. For example, the Office 
accepts statements of account under the section 111 cable license 
after a review for ``obvious errors or omissions appearing on the 
face of the documents'' (see 37 CFR 201.17(c)(2)), notices of 
intention under the section 115 compulsory license without review 
for ``legal sufficiency,'' ``errors or discrepancies'' (see 37 CFR 
201.18(g)), and agent designations made pursuant to section 
512(c)(2) without any examination.
---------------------------------------------------------------------------

    Even with a more comprehensive level of review there is always the 
potential that some documents and notices that fail to comply with the 
requirements for recordation might still get recorded by the Office 
because the deficiency is simply not caught during the examination 
process. Consequently, for clarity and avoidance of doubt, the interim 
rule makes some adjustments to the existing notice of termination 
provision concerning the legal effect of recordation and adds a similar 
provision for section 205 documents.\69\ The interim rule makes even 
clearer that the act of recordation should in no way be construed as a 
determination by the Office that a document or notice is valid or 
legally effective. The interim rule also makes plain that recordation 
is without prejudice to any party claiming, including in court, that 
the requirements for recordation or effectuating termination have not 
been met.
---------------------------------------------------------------------------

    \69\ While the provision for section 205 documents is 
technically new, the Office currently already provides similar 
guidance. See U.S. Copyright Office, Compendium of U.S. Copyright 
Office Practices, sec. 2305 (3d ed. 2017) (``Although the Office 
will record a document after it has been executed, it does not issue 
or enforce notices of termination, transfers of ownership, or other 
documents pertaining to copyright. The Office only serves as an 
office of public record for such documents. . . . The fact that a 
document has been recorded is not a determination by the U.S. 
Copyright Office concerning the validity or the effect of that 
document. That determination can only be made by a court of law. . . 
[T]he Office only examines documents to determine if they comply 
with the requirements of the Copyright Act and the Office's 
regulations. The Office will not attempt to interpret the 
substantive content of any document that has been submitted for 
recordation. Likewise, the Office will not attempt to determine 
whether a document satisfies the legal requirements that may be 
necessary for it to be effective or enforced.'').
---------------------------------------------------------------------------

List of Subjects in 37 CFR Part 201

    Copyright, General provisions.

[[Page 52219]]

Interim Regulations

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

PART 201--GENERAL PROVISIONS

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

    Authority: 17 U.S.C. 702.

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


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

    (a) General. This section prescribes conditions for the recordation 
of transfers of copyright ownership and other documents pertaining to a 
copyright under 17 U.S.C. 205. A document is eligible for recordation 
under this section if it meets the requirements of paragraph (d) of 
this section, if it is submitted in accordance with the submission 
procedure described in paragraph (e) of this section, and if it is 
accompanied by the fee specified in Sec.  201.3(c). The date of 
recordation is the date when all of the elements required for 
recordation, including a proper document, fee, and any additional 
required information, are received in the Copyright Office. After 
recordation the document is returned to the sender with a certificate 
of recordation. The Office may reject any document submitted for 
recordation that fails to comply with 17 U.S.C. 205, the requirements 
of this section, or any relevant instructions or guidance provided by 
the Office.
    (b) Documents not recordable under this section. This section does 
not govern the filing or recordation of the following documents:
    (1) Certain contracts entered into by cable systems located outside 
of the 48 contiguous States (17 U.S.C. 111(e); see Sec.  201.12);
    (2) Notices of identity and signal carriage complement, and 
statements of account of cable systems and satellite carriers and for 
digital audio recording devices and media (17 U.S.C. 111(d), 119(b), 
and 1003(c); see Sec. Sec.  201.11, 201.17, 201.28);
    (3) Notices of intention to obtain a compulsory license to make and 
distribute phonorecords of nondramatic musical works (17 U.S.C. 115(b); 
see Sec.  201.18);
    (4) Notices of termination (17 U.S.C. 203, 304(c) and (d); see 
Sec.  201.10);
    (5) Statements regarding the identity of authors of anonymous and 
pseudonymous works, and statements relating to the death of authors (17 
U.S.C. 302);
    (6) Documents pertaining to computer shareware and donation of 
public domain software (Pub. L. 101-650, sec. 805; see Sec.  201.26);
    (7) Notifications from the clerks of the courts of the United 
States concerning actions brought under title 17, United States Code 
(17 U.S.C. 508);
    (8) Notices to libraries and archives of normal commercial 
exploitation or availability at reasonable prices (17 U.S.C. 
108(h)(2)(C); see Sec.  201.39);
    (9) Submission of Visual Arts Registry Statements (17 U.S.C. 113; 
see Sec.  201.25);
    (10) Notices and correction notices of intent to enforce restored 
copyrights (17 U.S.C. 104A(e); see Sec. Sec.  201.33, 201.34); and
    (11) Designations of agents to receive notifications of claimed 
infringement (17 U.S.C. 512(c)(2); see Sec.  201.38).
    (c) Definitions. For purposes of this section:
    (1) A transfer of copyright ownership has the meaning set forth in 
17 U.S.C. 101.
    (2) A document pertaining to a copyright is any document that has a 
direct or indirect relationship to the existence, scope, duration, or 
identification of a copyright, or to the ownership, division, 
allocation, licensing, or exercise of rights under a copyright. That 
relationship may be past, present, future, or potential.
    (3) An actual signature is any legally binding signature, including 
an electronic signature as defined in 15 U.S.C. 7006.
    (4) A sworn certification is a statement made in accordance with 28 
U.S.C. 1746 that the copy of the document submitted for recordation is, 
to the best of the certifier's knowledge, a true copy of the original, 
signed document. A sworn certification must be signed by one of the 
parties to the signed document, a successor-in-interest to one of the 
parties to the signed document, or the authorized representative of 
such a party or successor. Authorized representatives must state who 
they represent and successors-in-interest must describe their 
relationship to the document or the original parties to the document. 
An authorized representative of a successor-in-interest must describe 
the successor's relationship to the document or the original parties to 
the document. A sworn certification may be signed electronically.
    (5) An official certification is a certification, by the 
appropriate governmental official, that the original of the document is 
on file in a public office and that the copy of the document submitted 
for recordation is a true copy of the original. An official 
certification may be signed electronically.
    (d) Document requirements--(1) Original or certified copy. The 
remitter must submit either the original document that bears the actual 
signature(s) of the person(s) who executed it, or a copy of the 
original, signed document accompanied by a sworn certification or an 
official certification. Each document submitted for recordation must be 
certified to either have the actual signature(s) (if it is an original 
document) or reproduce the actual signature(s) (in the case of a copy 
of the original document). All documents lacking a handwritten, wet 
signature (including all documents bearing an electronic signature) are 
considered to be copies of the original, signed document, and must be 
accompanied by a sworn certification or an official certification. 
Where an actual signature on the relevant document is not a handwritten 
or typewritten name, such as when an individual clicks a button on a 
Web site or application to indicate agreement to contractual terms, the 
remitter must submit a description of the nature of the signature and 
documentation evidencing the existence of the signature (e.g., a 
database entry or confirmation email showing that a particular user 
agreed to the terms by clicking ``yes'' on a particular date). Where 
such description and evidence are provided, the Office will make them 
available for public inspection and may presume that the signature 
requirement for recordation has been satisfied, without prejudice to 
any party claiming otherwise, including before a court of competent 
jurisdiction.
    (2) Completeness. Each document submitted for recordation must be, 
and be certified to be, complete by its terms, but need only include 
referenced schedules, appendices, exhibits, addenda, or other material 
essential to understanding the copyright-related aspects of the 
document.
    (3) Legibility. Each document submitted for recordation must be, 
and be certified to be, legible.
    (4) Redactions. The Office will accept and make available for 
public inspection redacted documents certified to be redacted in 
accordance with this paragraph (d)(4), provided that all of the 
following conditions are satisfied:
    (i) The redactions must be limited to financial terms, trade secret 
information, Social Security or taxpayer-identification numbers, and 
financial account numbers. Additional types of information may be 
redacted on a case-by-case basis if the need for any such redactions is 
justified to the Office in writing and approved by the Office; such 
written requests should be

[[Page 52220]]

included in the remitter's recordation submission to the Office.
    (ii) The blank or blocked-out portions of the document must be 
labeled ``redacted'' or the equivalent.
    (iii) Each portion of the document required by paragraph (d)(2) of 
this section must be included.
    (5) English language requirement. The Office will accept and record 
non-English language documents and indexing information only if 
accompanied by an English translation that is either signed by the 
individual making the translation or, if a publicly available 
commercial or consumer translation software product or automated 
service is used, by the individual using such product or service and 
accompanied by the name of the product or service. All translations 
will be made available for public inspection and may be redacted in 
accordance with paragraph (d)(4) of this section.
    (e) Paper submission procedure--(1) Process. A document may be 
submitted for recordation by sending it to the appropriate address in 
Sec.  201.1(b) or to such other address as the Office may specify, 
accompanied by a cover sheet, the proper fee, and, if applicable, any 
electronic title list. Absent special arrangement with the Office, the 
Office reserves the right to not process the submission unless all of 
the items necessary for processing are received together.
    (2) Cover sheet required. Submission of a document must include a 
completed Recordation Document Cover Sheet (Form DCS), available on the 
Copyright Office Web site. Remitters must follow all instructions 
provided by the Office in completing Form DCS, including by providing 
all requested indexing information. Form DCS may be used to provide a 
sworn certification, if appropriate, and to make any of the other 
certifications required by this section. Form DCS will not be 
considered part of the recorded document, but will be used by the 
Office for examination, indexing, and other administrative purposes. 
The Office may reject any document submitted for recordation that 
includes an improperly prepared cover sheet.
    (3) Electronic title list. (i) In addition to identifying the works 
to which a document pertains in the paper submission, the remitter may 
also submit an electronic list setting forth each such work. The 
electronic list will not be considered part of the recorded document, 
but will be used by the Office for indexing purposes. Absent special 
arrangement with the Office, the electronic list must be included in 
the same package as the paper document to be recorded. The electronic 
list must be prepared and submitted to the Office in the manner 
specified by the Copyright Office in instructions made available on its 
Web site. The Office may reject any document submitted for recordation 
that includes an improperly prepared electronic title list.
    (ii) If a remitter of a recorded document finds that an error or 
omission in an electronic title list has led to the inaccurate indexing 
of the document in the public catalog, the remitter may request that 
the record be corrected by following the instructions provided by the 
Office on its Web site. Upon receipt of a properly prepared corrective 
filing and the appropriate fee, the Office will proceed to correct the 
information in the public catalog, and will make a note in the record 
indicating that the corrections were made and the date they were made.
    (4) Return receipt. If a remitter includes two copies of a properly 
completed Form DCS indicating that a return receipt is requested, as 
well as a self-addressed, postage-paid envelope, the remitter will 
receive a date-stamped return receipt attached to the extra copy 
acknowledging the Copyright Office's receipt of the enclosed 
submission. The completed copies of Form DCS and the self-addressed, 
postage-paid envelope must be included in the same package as the 
submitted document. A return receipt confirms the Office's receipt of 
the submission as of the date indicated, but does not establish 
eligibility for, or the date of, recordation.
    (5) Remitter certification. The remitter must certify that he or 
she has appropriate authority to submit the document for recordation 
and that all information submitted to the Office by the remitter is 
true, accurate, and complete to the best of the remitter's knowledge.
    (f) Reliance on remitter-provided information. The Copyright Office 
will rely on the certifications submitted with a document and the 
information provided by the remitter on Form DCS and, if provided, in 
an accompanying electronic title list. The Office will not necessarily 
confirm the accuracy of such certifications or information against the 
submitted document.
    (g) Effect of recordation. The fact that the Office has recorded a 
document is not a determination by the Office of the document's 
validity or legal effect. Recordation of a document by the Copyright 
Office is without prejudice to any party claiming that the legal or 
formal requirements for recordation have not been met, including before 
a court of competent jurisdiction.

0
3. Revise Sec.  201.10(f) to read as follows:


Sec.  201.10  Notices of termination of transfers and licenses.

* * * * *
    (f) Recordation. A copy of a notice of termination shall be 
recorded in the Copyright Office as required by 17 U.S.C. 203(a)(4)(A), 
17 U.S.C. 304(c)(4)(A), or 17 U.S.C. 304(d)(1) if it meets the 
requirements of paragraph (f)(1) of this section, is submitted in 
compliance with paragraph (f)(2) of this section, and is accompanied by 
the fee specified in Sec.  201.3(c). The Office may reject any notice 
submitted for recordation that fails to comply with 17 U.S.C. 203(a), 
17 U.S.C. 304(c), 17 U.S.C. 304(d), the requirements of this section, 
or any relevant instructions or guidance provided by the Office.
    (1) Requirements. The following requirements must be met before a 
copy of a notice of termination may be recorded in the Copyright 
Office.
    (i) What must be submitted--(A) Copy of notice of termination. A 
copy of a notice of termination submitted for recordation must be, and 
be certified to be, a true, correct, complete, and legible copy of the 
signed notice of termination as served. Where separate copies of the 
same notice were served on more than one grantee or successor-in-title, 
only one copy need be submitted for recordation.
    (B) Statement of service. The copy submitted for recordation must 
be accompanied by a statement setting forth the date on which the 
notice was served and the manner of service, unless such information is 
contained in the notice. In instances where service is made by first 
class mail, the date of service shall be the day the notice of 
termination was deposited with the United States Postal Service.
    (ii) Timeliness. (A) The Copyright Office will refuse recordation 
of a notice of termination as such if, in the judgment of the Copyright 
Office, such notice of termination is untimely. Conditions under which 
a notice of termination will be considered untimely include: the 
effective date of termination does not fall within the five-year period 
described in section 203(a)(3) or section 304(c)(3), as applicable, of 
title 17, United States Code; the documents submitted indicate that the 
notice of termination was served less than two or more than ten years 
before the effective date of termination; or the date of recordation is 
after the effective date of termination.
    (B) If a notice of termination is untimely, the Office will offer 
to record the document as a ``document

[[Page 52221]]

pertaining to a copyright'' pursuant to Sec.  201.4, but the Office 
will not index the document as a notice of termination.
    (C) In any case where an author agreed, prior to January 1, 1978, 
to a grant of a transfer or license of rights in a work that was not 
created until on or after January 1, 1978, a notice of termination of a 
grant under section 203 of title 17 may be recorded if it recites, as 
the date of execution, the date on which the work was created.
    (2) Paper submission procedure--(i) Process. A copy of a notice of 
termination may be submitted for recordation by sending it to the 
appropriate address in Sec.  201.1(c) or to such other address as the 
Office may specify, accompanied by a cover sheet, the statement of 
service, and the proper fee.
    (ii) Cover sheet required. Submission of a copy of a notice of 
termination must be accompanied by a completed Recordation Notice of 
Termination Cover Sheet (Form TCS), available on the Copyright Office 
Web site. Remitters must follow all instructions provided by the Office 
in completing Form TCS, including by providing all requested indexing 
information. Form TCS may be used to provide the statement of service 
and to make any of the certifications required by this paragraph (f). 
Form TCS will not be considered part of the recorded notice, but will 
be used by the Office for examination, indexing, and other 
administrative purposes. The Office may reject any notice submitted for 
recordation that includes an improperly prepared cover sheet.
    (iii) Return receipt. If a remitter includes two copies of a 
properly completed Form TCS indicating that a return receipt is 
requested, as well as a self-addressed, postage-paid envelope, the 
remitter will receive a date-stamped return receipt attached to the 
extra copy acknowledging the Copyright Office's receipt of the enclosed 
submission. The completed copies of Form TCS and the self-addressed, 
postage-paid envelope must be included in the same package as the 
submitted notice. A return receipt confirms the Office's receipt of the 
submission as of the date indicated, but does not establish eligibility 
for, or the date of, recordation.
    (iv) Remitter certification. The remitter must certify that he or 
she has appropriate authority to submit the notice for recordation and 
that all information submitted to the Office by the remitter is true, 
accurate, and complete to the best of the remitter's knowledge.
    (3) Date of recordation. The date of recordation is the date when 
all of the elements required for recordation, including the prescribed 
fee and, if required, the statement of service, have been received in 
the Copyright Office. After recordation, the notice, including any 
accompanying statement, is returned to the sender with a certificate of 
recordation.
    (4) Effect of recordation. The fact that the Office has recorded a 
notice is not a determination by the Office of the notice's validity or 
legal effect. Recordation of a notice of termination by the Copyright 
Office is without prejudice to any party claiming that the legal or 
formal requirements for effectuating termination (including the 
requirements pertaining to service and recordation of the notice of 
termination) have not been met, including before a court of competent 
jurisdiction.
    (5) Reliance on remitter-provided information. The Copyright Office 
will rely on the certifications submitted with a notice and the 
information provided by the remitter on Form TCS and, if provided, in 
an accompanying statement of service. The Office will not necessarily 
confirm the accuracy of such certifications or information against the 
submitted notice.
* * * * *

    Dated: October 25, 2017.
Karyn Temple Claggett,
Acting Register of Copyrights and Director of the U.S. Copyright 
Office.
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2017-24527 Filed 11-9-17; 8:45 am]
 BILLING CODE 1410-30-P