Filing of Schedules by Rights Owners and Contact Information by Transmitting Entities Relating to Pre-1972 Sound Recordings, 52150-52154 [2018-22518]

Download as PDF 52150 Federal Register / Vol. 83, No. 200 / Tuesday, October 16, 2018 / Rules and Regulations We also have determined that this regulatory action does not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions. In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. Because the rescinded regulations are obsolete, we do not believe that this action will result in any additional costs or benefits. Regulatory Flexibility Act Certification Pursuant to 5 U.S.C. 601(2), the Regulatory Flexibility Act applies only to rules for which an agency publishes a general notice of proposed rulemaking. The Regulatory Flexibility Act does not apply to this rulemaking because there is good cause to waive notice and comment under 5 U.S.C. 553. Paperwork Reduction Act of 1995 amozie on DSK3GDR082PROD with RULES These regulations do not contain any information collection requirements. your search to documents published by the Department. ACTION: List of Subjects SUMMARY: 34 CFR Part 611 Colleges and universities, Elementary and secondary education, Grant programs-education. 34 CFR Part 614 Grant programs-education, colleges and universities. Dated: October 10, 2018. Diane Auer Jones, Principal Deputy Under Secretary Delegated to Perform the Duties of Under Secretary and Assistant Secretary for the Office of Postsecondary Education. For the reasons discussed in the preamble, and under the authority at 20 U.S.C. 3474 and 20 U.S.C. 1221e–3, the Secretary amends chapter VI of title 34 of the Code of Federal Regulations as follows: PART 611—[Removed] 1. Part 611 is removed. Intergovernmental Review ■ These programs are subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance. Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., Braille, large print, audiotape, or compact disc) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT. Electronic Access to This Document: The official version of this document is the document published in the Federal Register. You may access the official edition of the Federal Register and the Code of Federal Regulations via the Federal Digital System at: www.gpo.gov/ fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site. You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit PART 614—[Removed] VerDate Sep<11>2014 16:24 Oct 15, 2018 Jkt 247001 ■ 2. Part 614 is removed. PART 636—[Removed] ■ 3. Reserved part 636 is removed. PART 649—[Removed] ■ 4. Reserved part 649 is removed. PART 680—[Removed] ■ 5. Reserved part 680 is removed. PART 693—[Removed] ■ 6. Reserved part 693 is removed. PARTS 695–699—[REMOVED] 7. Reserved parts 695–699 are removed. ■ [FR Doc. 2018–22413 Filed 10–15–18; 8:45 am] BILLING CODE 4000–01–P LIBRARY OF CONGRESS Copyright Office 37 CFR Part 201 [Docket No. 2018–7] Filing of Schedules by Rights Owners and Contact Information by Transmitting Entities Relating to Pre1972 Sound Recordings U.S. Copyright Office, Library of Congress. AGENCY: PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 Interim rule with request for comments. The U.S. Copyright Office is issuing interim regulations pursuant to the Classics Protection and Access Act, title II of the recently enacted Orrin G. Hatch-Bob Goodlatte Music Modernization Act. These regulations pertain to the filing of schedules by rights owners listing their sound recordings fixed before February 15, 1972, and the filing of contact information by entities publicly performing these sound recordings by means of digital audio transmission. As required under the Act, the Office is also specifying how individuals may request timely notification of the filing of such schedules with the Office. These regulations are issued on an interim basis with opportunity for comment to comply with statutory requirements and to ensure that both rights owners and transmitting entities can promptly make use of these new filing mechanisms to protect their respective legal interests. The Office welcomes comment on these interim rules. DATES: The effective date of the interim regulations is October 16, 2018. Written comments must be received no later than 11:59 p.m. Eastern Time on November 15, 2018. ADDRESSES: For reasons of government efficiency, the Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office’s website at https:// www.copyright.gov/rulemaking/ pre1972-soundrecordings-schedules/. If electronic submission of comments is not feasible due to lack of access to a computer and/or the internet, please contact the Office using the contact information below for special instructions. FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and Associate Register of Copyrights, by email at regans@copyright.gov, Anna Chauvet, Assistant General Counsel, by email at achau@copyright.gov, or Jason E. Sloan, Assistant General Counsel, by email at jslo@copyright.gov. Each can be contacted by telephone by calling (202) 707–8350. SUPPLEMENTARY INFORMATION: I. Background On October 11, 2018, the president signed into law the Orrin G. Hatch-Bob Goodlatte Music Modernization Act, E:\FR\FM\16OCR1.SGM 16OCR1 Federal Register / Vol. 83, No. 200 / Tuesday, October 16, 2018 / Rules and Regulations H.R. 1551 (‘‘MMA’’). Title II of the MMA, the Classics Protection and Access Act, created chapter 14 of the copyright law, title 17, United States Code, which, among other things, extends remedies for copyright infringement to owners of sound recordings fixed before February 15, 1972 (‘‘Pre-1972 Sound Recordings’’). Under the provision, rights owners may be eligible to recover statutory damages and/or attorneys’ fees for the unauthorized use of their Pre-1972 Sound Recordings if certain requirements are met. Specifically, to be eligible for these remedies, rights owners must typically file schedules listing their Pre-1972 Sound Recordings (‘‘Pre-1972 Schedules’’) with the U.S. Copyright Office (the ‘‘Office’’), which are then indexed into the Office’s public records.1 The remedies are only available for unauthorized uses of a recording that have occurred more than 90 days after indexing.2 Pre-1972 Schedules must include the name of the rights owner, title, and featured artist for each recording listed, and ‘‘such other information, as practicable, that the Register of Copyrights prescribes by regulation.’’ 3 The filing requirement ‘‘is designed to operate in place of a formal registration requirement that normally applies to claims involving statutory damages.’’ 4 In addition, the Pre-1972 Schedules are important to the Act’s new exemption for noncommercial uses of Pre-1972 Sound Recordings that are not being commercially exploited.5 Under that provision, persons seeking to use the exemption are exempt from liability for unauthorized use if they make a ‘‘good faith, reasonable search for’’ a given sound recording in the Office’s records of Pre-1972 Schedules before determining that the recording is not being commercially exploited.6 In establishing a filing mechanism for Pre1972 Schedules, the Office must also provide a means for individuals to request and receive timely notification 1 17 U.S.C. 1401(f)(5)(A)(i)(I)–(II). 1401(f)(5)(A)(i)(II). 3 Id. 1401(f)(5)(A)(i)(I). 4 H.R. Rep. No. 115–651, at 16 (2018); see S. Rep. No. 115–339, at 18 (2018); 17 U.S.C. 412 (stating that generally ‘‘no award of statutory damages or of attorney’s fees . . . Shall be made for . . . any infringement of copyright in an unpublished work commenced before the effective date of its registration’’ or ‘‘any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work’’). 5 17 U.S.C. 1401(c)(1)(A)(i). The Copyright Office is separately issuing a notice of inquiry related to regulations the Register must promulgate regarding this exception. See id. 1401(c)(3), (5)(A). 6 Id. 1401(c)(1)(A). amozie on DSK3GDR082PROD with RULES 2 Id. VerDate Sep<11>2014 16:24 Oct 15, 2018 Jkt 247001 when such filings are indexed into the Office’s public record.7 In addition, rights owners must provide specific notice of unauthorized use to certain entities that were previously transmitting Pre-1972 Sound Recordings, before pursuing certain remedies against them. To be entitled to receive direct notice of unauthorized activity from a rights owner, an entity must have been publicly performing a Pre-1972 Sound Recording by means of digital audio transmission at the time of enactment of section 1401 and must file its contact information with the Copyright Office within 180 days of enactment, that is, by April 9, 2019.8 Where a valid notice of contact information has been filed, the rights owner may be eligible to obtain statutory damages and/or attorneys’ fees only after sending the transmitting entity a notice stating that it is not legally authorized to use the Pre-1972 Sound Recording, and identifying the Pre-1972 Sound Recording in a schedule conforming to the requirements by the Office for filing Pre-1972 Schedules.9 In addition, the unauthorized use must have occurred 90 days after the entity receives the notice.10 After April 9, 2019, the Office cannot accept any new filings of contact information by transmitting entities.11 For any eligible transmitting entity that does not file its contact information by April 9, 2019, rights owners are not obligated to send it a direct notice of unauthorized use prior to becoming eligible for statutory damages and/or attorneys’ fees.12 Rather, as described above, rights owners would file Pre-1972 Schedules with the Copyright Office, and they would become eligible for these remedies for unauthorized uses of a recording occurring more than 90 days after indexing of the schedules.13 II. Interim Rule The Office promulgates the following interim rule to establish and govern the filing of Pre-1972 Schedules, the filing of contact information by entities publicly performing Pre-1972 Sound Recordings by means of digital audio transmission at the time of enactment of section 1401 (‘‘Notice of Contact Information’’), and the means by which individuals may request and receive timely notification when Pre-1972 7 Id. 1401(f)(5)(A)(ii)(II)–(III). 1401(f)(5)(B)(i)–(ii). 9 Id. 1401(f)(5)(B)(iii). 10 Id. 1401(f)(5)(B)(iii)(I). 11 Id. 1401(f)(5)(B)(ii). 12 H.R. Rep. No. 115–651, at 16 (2018); see S. Rep. No. 115–339, at 19 (2018). 13 17 U.S.C. 1401(f)(5)(A). 8 Id. PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 52151 Schedules are indexed into the Office’s public records. A. Pre-1972 Schedules Under the interim rule, rights owners may file Pre-1972 Schedules with the Office using a form provided on the Office’s website. At present, the form is an Excel spreadsheet template. This format is required so that the Office can timely ingest the Pre-1972 Schedules and index them into a searchable database available to prospective users, including persons who may otherwise wish to make noncommercial uses of these works, and the general public. The database of Pre-1972 Schedules is available on the Office’s website at https://copyright.gov/musicmodernization/pre1972soundrecordings/searchsoundrecordings.html. For each sound recording, the Pre1972 Schedule must include the rights owner’s name, the sound recording title, and the featured artist. Rights owners may also include additional optional information pursuant to the instructions on the form and the Office’s website. For example, the Pre-1972 Schedule may include, for each sound recording, album title information, any alternate sound recording title(s), the publication date, the label name, and the rights owner’s contact information. A rights owner may elect to include this optional information on a recording-by-recording basis. In addition, the individual submitting the Pre-1972 Schedule must certify that she has appropriate authority to submit the schedule and that all information submitted to the Office is true, accurate, and complete to the best of the individual’s knowledge, and is made in good faith. The Office may reject any Pre-1972 Schedule that fails to comply with these requirements or any additional requirements provided on the Office’s website or the form itself. As noted above, for a rights owner to be eligible to recover statutory damages and/or attorneys’ fees for the unauthorized use of a Pre-1972 Sound Recording, the use must occur at least 90 days after a Pre-1972 Schedule that includes the recording is ‘‘indexed into the public records of the Copyright Office’’ 14 (or 90 days after a transmitting entity receives direct notice of unauthorized use, if applicable 15). Under the interim rule, a Pre-1972 Schedule will be considered ‘‘indexed’’ once it is made publicly available through the Office’s online database of Pre-1972 Schedules. 14 Id. 15 Id. E:\FR\FM\16OCR1.SGM 1401(f)(5)(A)(i)(II). 1401(f)(5)(B)(iii)(I). 16OCR1 52152 Federal Register / Vol. 83, No. 200 / Tuesday, October 16, 2018 / Rules and Regulations amozie on DSK3GDR082PROD with RULES The interim rule also states that if ownership of a Pre-1972 Sound Recording changes after its inclusion in a Pre-1972 Schedule filed with the Office, the Office will consider the schedule to be effective as to any successor in interest. A successor in interest may, but is not required to file a new schedule. The Office invites public comments on whether it should accept transfers of rights ownership and other documents pertaining to a Pre1972 Sound Recording (excluding Pre1972 Schedules) for recordation, even though they are not transfers of copyright ownership or documents pertaining to a copyright under 17 U.S.C. 205. At present, the Office has not implemented a means for rights owners to correct limited mistakes in Pre-1972 Schedules indexed into the Office’s public records (e.g., accidentally misspelling the title of a sound recording or including an errant title). Presently, rights owners can file a new Pre-1972 Schedule listing the sound recording for which incorrect information was indexed, but the original and new Pre-1972 Schedules would coexist in the Office’s database of Pre-1972 Schedules, and each schedule would have its own index date. This treatment is consistent with the Copyright Office’s recordation functions generally, although the Office is currently evaluating comments requesting a method for correcting errors, and has implemented a limited provision permitting corrections for electronic title lists.16 The Office invites public comment on whether and how to provide a mechanism for the correction of limited mistakes in Pre-1972 Schedules, or adding supplemental information about a sound recording, including the potential effect on a Schedule’s index date and how to keep administrative costs low. As required by the Music Modernization Act, the interim regulations also confirm that persons may request timely notification of when Pre-1972 Schedules are indexed into the Office’s public records by following the instructions provided by the Copyright Office on its website. Presently, individuals requesting such notification can subscribe to a weekly email through 16 See Modernizing Copyright Recordation, Interim Rule, 82 FR 52213, 52217 (Nov. 13, 2017). The Office notes, however, that permitting corrections in electronic title lists (‘‘ETL’’) would differ from permitting corrections in Pre-1972 Schedules. An ETL is not considered part of the recorded document; rather an ETL is only used administratively to populate the Office’s public record (as opposed to manually inputting information about the document into the Office’s public record). VerDate Sep<11>2014 16:24 Oct 15, 2018 Jkt 247001 a service similar to the Office’s NewsNet service, which will provide a link to the Office’s online database of indexed Pre1972 Schedules. The Office’s searchable database defaults to listing the sound recordings with the most recent index dates first, so individuals should easily be able to identify recently indexed filings. As with similar types of filings made with the Office, the interim rule states that the Office does not review Pre-1972 Schedules for legal sufficiency, interpret their content, or screen them for errors or discrepancies.17 Rather, the Office’s review is limited to whether the procedural requirements established by the Office (including payment of the proper filing fee) have been met. Rights owners are therefore cautioned to review and scrutinize schedules to assure their legal sufficiency before submitting them to the Office. Regarding filing fees, the Copyright Act grants the Office authority to establish, adjust, and recover fees for services provided to the public.18 The Office concludes that during the interim period, the appropriate fee to file a Pre1972 Schedule will be the same as the current fee to record a notice of intention to make and distribute phonorecords under section 115 (‘‘NOI’’).19 The Office anticipates that the processing of Pre-1972 Schedules will be analogous to that of processing electronic NOIs, and so the fee should be the same.20 There will be no fee for individuals to request and receive timely notifications of when Pre-1972 Schedules are indexed into the Office’s public records. 17 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’’ or ‘‘errors or discrepancies’’ (see 37 CFR 201.18(g)), and agent designations made pursuant to section 512(c)(2) without any examination. 18 See 17 U.S.C. 708. 19 37 CFR 201.3(e)(1) (stating cost to record section 115 NOI is $75, with an additional $10 fee per group of 1 to 100 additional titles for electronic filing). 20 Basing the cost of a service on the cost for a similar service is appropriate. See Copyright Office Fees, 83 FR 24045, 24059 (May 24, 2018) (proposing setting new fees at the same level for ‘‘analogous’’ services). In 2017, Booz Allen Hamilton conducted a study of the Office’s most recent fee structure. When asked whether existing rates could be leveraged for new group registration options, it concluded it was appropriate if the work required was of a similar grade and compensation level. Booz Allen Hamilton, U.S. Copyright Office, Fee Study Question and Answers (Dec. 2017), https:// www.copyright.gov/rulemaking/feestudy2018/fee_ study_q&a.pdf. PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 B. Notices of Contact Information Under the interim rule, transmitting entities may file a Notice of Contact Information with the Office using a form and instructions specified on the Office’s website. The Office is using pay.gov to receive these Notices after determining that it is the best available method to process these filings within the six-month window permitted under the statute. The Notice of Contact Information must include the legal name, email address, and physical street address of the transmitting entity to which rights owners should send notifications of claimed violations of 17 U.S.C. 1401(a).21 Related or affiliated transmitting entities that are separate legal entities (e.g., corporate parents and subsidiaries) are considered separate transmitting entities, and each must file its own separate Notice of Contact Information. But the Notice of Contact Information may include alternate names for the transmitting entity that the public may use to identify a specific legal entity, including names under which the transmitting entity is doing business and other commonly used names. Separate legal entities are not considered alternate names. The Notice of Contact Information shall also include the website(s) and/or application(s) through which the transmitting entity publicly performs Pre-1972 Sound Recordings by means of digital audio transmission. Finally, the Notice of Contact Information must include a certification that the transmitting entity was publicly performing Pre-1972 Sound Recordings by means of digital audio transmission as of October 11, 2018, that the individual submitting the notice has appropriate authority to submit the notice, and that all information submitted to the Office is true, accurate, and complete to the best of the individual’s knowledge, and is made in good faith. The Office may reject any Notice of Contact Information that fails to comply with these requirements or any additional requirements provided on the Office’s website or the form itself. If an entity submits a Notice of Contact Information following the instructions provided by the Office, including paying the appropriate fee, the Office will make the Notice publicly available in a searchable online directory, available on the Office’s website at https://copyright.gov/musicmodernization/pre1972soundrecordings/notices-contact21 The Office is requiring a physical street address so that rights owners may use delivery methods that allow for tracking and/or delivery confirmation. E:\FR\FM\16OCR1.SGM 16OCR1 52153 Federal Register / Vol. 83, No. 200 / Tuesday, October 16, 2018 / Rules and Regulations information.html. If a transmitting entity includes alternate names in its Notice of Contact Information, users will be able to search on those names to locate the transmitting entity’s Notice of Contact Information. The Office concludes that during the interim period, the appropriate fee to file a Notice of Contact Information will be similar to the fee previously in effect for service providers to designate an agent to receive notifications of claimed copyright infringement under 17 U.S.C. 512(c).22 The Office anticipates that the processing of Notices of Contact Information will be analogous to how designations of agents were processed prior to the existing Digital Millennium Copyright Act (‘‘DMCA’’) designated agent directory.23 Following that model, the interim rule assesses an additional cost to process alternate names submitted by the transmitting entity.24 III. Request for Comments These interim regulations will go into effect immediately after publication of this document in the Federal Register. Comments will be due 30 days thereafter. The Copyright Office is issuing these interim regulations after finding, for good cause, that notice and public procedure prior to their issuance would be impracticable and contrary to the public interest.25 The MMA requires swift action by the Office. The Office must issue regulations regarding the filing of Notices of Contact Information within 30 days of enactment, and transmitting entities have only 180 days within which they may file these Notices.26 Similarly, while the Office has 180 days to establish regulations regarding the form and submission of Pre-1972 Schedules, this filing serves as a gating factor to rights owners being eligible for statutory damages and/or attorneys’ fees for unauthorized uses of Pre-1972 Sound Recordings, as well as the ability of persons to search these schedules before determining whether a given sound recording is being commercialized or is available for the noncommercial use exception.27 The interim rule will also inform the Office’s concurrent rulemaking regarding the criteria for a good faith search to make use of the exception for noncommercial uses of sound recordings.28 The Office concludes that a prompt interim rule best serves the legal interests of all relevant stakeholders as well as the general public. Thus, notice and comment is not required under the Administrative Procedure Act.29 List of Subjects in 37 CFR Part 201 Copyright, General provisions. Interim Regulations For the reasons set forth in the preamble, the Copyright Office amends 37 CFR part 201 as follows: PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 continues to read as follows: ■ Authority: 17 U.S.C. 702. 2. Amend § 201.3 as follows: a. Redesignate paragraphs (c)(19) and (20) as paragraphs (c)(21) and (22), respectively. ■ b. Add new paragraphs (c)(19) and (20) to read as follows: ■ ■ § 201.3 Fees for registration, recordation, and related services, special services, and services performed by the Licensing Division. * * * (c) * * * * * Fees ($) Registration, recordation and related services * * * * * * * (19) Notice of contact information for transmitting entities publicly performing pre-1972 sound recordings by means of digital audio transmission, or amendment of contact information ................................................................................................................................ Alternate names (each) ............................................................................................................................................................................... (20) Schedule of pre-1972 sound recordings (single title) .......................................................................................................................... Additional titles (per group of 1 to 100 titles) .............................................................................................................................................. * * * * * * * * 3. Amend § 201.4 by adding paragraphs (b)(12) and (13) to read as follows: ■ § 201.4 Recordation of transfers and other documents pertaining to copyright. * * * * (b) * * * (12) Notices of contact information for transmitting entities publicly performing pre-1972 sound recordings amozie on DSK3GDR082PROD with RULES * 22 37 CFR 201.3(c)(17) (2016) (cost of $105 to record designation of agent under section 512(c)(2), with additional $35 fee per group of 1 to 10 additional names). In 2016, the Office launched a new database to designate an agent, which required less Office processing and so the Office lowered the filing fee to $6. 37 CFR 201.3(c)(17) (2017). 23 See Old Directory of DMCA Designated Agents 1998–2016, U.S. Copyright Office, https:// www.copyright.gov/onlinesp/list/a_agents.html. 24 Because of the time sensitivity regarding the processing of Notices of Contact Information and VerDate Sep<11>2014 16:24 Oct 15, 2018 Jkt 247001 * * by means of digital audio transmission (17 U.S.C. 1401(f)(5)(B); see § 201.36). (13) Schedules of pre-1972 sound recordings (17 U.S.C. 1401(f)(5)(A); see § 201.35). * * * * * ■ 4. Add § 201.35 to read as follows: § 201.35 Schedules of pre-1972 sound recordings. (a) General. This section prescribes the rules under which rights owners, additional work required by the Office, the additional cost will be $35 per alternate name listed. 25 In the past, the Copyright Office has similarly issued interim rules upon the enactment of legislation before soliciting public comments. See, e.g., Freedom of Information Act Regulations, 82 FR 9505, 9506 (Feb. 7, 2017) (issuing interim rule to implement the FOIA Improvements Act because ‘‘allowing for notice and public procedure prior to the issuance of . . . interim regulations would be impracticable’’); Designation of Agent to Receive PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 * 105 35 75 10 * pursuant to 17 U.S.C. 1401(f)(5)(A), may file schedules listing their pre-1972 sound recordings with the Copyright Office to be eligible for statutory damages and/or attorneys’ fees for violations of 17 U.S.C. 1401(a). (b) Definitions. For purposes of this section: (1) Unless otherwise specified, the terms used have the meanings set forth in 17 U.S.C. 1401. Notification of Claimed Infringement, 63 FR 59233, 59234 (Nov. 3, 1998) (issuing interim rule regarding designation of agent after enactment of the DMCA because ‘‘online service providers may wish immediately to designate agents to receive notification of claimed infringement’’). 26 17 U.S.C. 1401(f)(5)(B). 27 Id. 1401(c)(1)(A), (f)(5)(A). 28 Id. 1401(c)(1)(A). 29 See 5 U.S.C. 553(b), (d)(3); Phila. Citizen in Action v. Schweiker, 669 F.2d 877, 884–85 (3d Cir. 1982). E:\FR\FM\16OCR1.SGM 16OCR1 amozie on DSK3GDR082PROD with RULES 52154 Federal Register / Vol. 83, No. 200 / Tuesday, October 16, 2018 / Rules and Regulations (2) A pre-1972 sound recording is a sound recording fixed before February 15, 1972. (c) Form and submission. A rights owner seeking to comply with 17 U.S.C. 1401(f)(5)(A) must submit a schedule listing the owner’s pre-1972 sound recordings using an appropriate form provided by the Copyright Office on its website and following the instructions for completion and submission provided on the Office’s website or the form itself. The Office may reject any submission that fails to comply with these requirements. (d) Content. A schedule of pre-1972 sound recordings shall contain the following: (1) For each sound recording listed, the right’s owner name, sound recording title, and featured artist; (2) A certification that the individual submitting the schedule of pre-1972 sound recordings has appropriate authority to submit the schedule and that all information submitted to the Office is true, accurate, and complete to the best of the individual’s knowledge, information, and belief, and is made in good faith. (3) For each sound recording listed, the rights owner may opt to include additional information as permitted and in the format specified by the Office’s form or instructions, such as publication date, or alternate title information. (e) Transfer of rights ownership. If ownership of a pre-1972 sound recording changes after its inclusion in a schedule filed with the Office under this section, the Office will consider the schedule to be effective as to any successor in interest. A successor in interest may, but is not required, to file a new schedule under this section. (f) Legal sufficiency of schedules. The Copyright Office does not review schedules submitted under paragraph (c) of this section for legal sufficiency, interpret their content, or screen them for errors or discrepancies. The Office’s review is limited to whether the procedural requirements established by the Office (including payment of the proper filing fee) have been met. Rights owners are therefore cautioned to review and scrutinize schedules to assure their legal sufficiency before submitting them to the Office. (g) Filing date. The date of filing of a schedule of pre-1972 sound recordings is the date when a proper submission, including the prescribed fee, is received in the Copyright Office. The filing date may not necessarily be the same date that the schedule, for purposes of 17 U.S.C. 1401(f)(5)(A)(i)(II), is indexed into the Office’s public records. VerDate Sep<11>2014 16:24 Oct 15, 2018 Jkt 247001 (h) Fee. The filing fee to submit a schedule of pre-1972 sound recordings pursuant to this section is prescribed in § 201.3(c). (i) Third-party notification. A person may request timely notification of filings made under this section by following the instructions provided by the Copyright Office on its website. ■ 5. Add § 201.36 to read as follows: § 201.36 Notices of contact information for transmitting entities publicly performing pre-1972 sound recordings. (a) General. This section prescribes the rules under which transmitting entities may file contact information with the Copyright Office pursuant to 17 U.S.C. 1401(f)(5)(B). (b) Definitions. For purposes of this section: (1) Unless otherwise specified, the terms used have the meanings set forth in 17 U.S.C. 1401. (2) A pre-1972 sound recording is a sound recording fixed before February 15, 1972. (3) A transmitting entity is an entity that, as of October 11, 2018, publicly performs pre-1972 sound recordings by means of digital audio transmission. (c) Form and submission. A transmitting entity seeking to comply with 17 U.S.C. 1401(f)(5)(B) must submit contact information using an appropriate form specified by the Copyright Office on its website and following the instructions for completion and submission provided on the Office’s website or the form itself. The Office may reject any submission that fails to comply with these requirements. No notice or amended notice received after April 9, 2019 will be accepted by the Office. (d) Content. A notice submitted under paragraph (c) of this section shall contain the following, in addition to any other information required on the Office’s form or website: (1) The full legal name, email address, and physical street address of the transmitting entity to which rights owners should send notifications of claimed violations of 17 U.S.C. 1401(a). A post office box may not be substituted for the street address of a transmitting entity. Related or affiliated transmitting entities that are separate legal entities (e.g., corporate parents and subsidiaries) are considered separate transmitting entities, and each must file its own separate notice of contact information. (2) The website(s) and/or application(s) through which the transmitting entity publicly performs pre-1972 sound recordings by means of digital audio transmission. PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 (3) A certification that the transmitting entity was publicly performing pre-1972 sound recordings by means of digital audio transmission as of October 11, 2018. (4) A certification that the individual submitting the notice has appropriate authority to submit the notice and that all information submitted to the Office is true, accurate, and complete to the best of the individual’s knowledge, information, and belief, and is made in good faith. (5) The transmitting entity may opt to include alternate names for which the transmitting entity seeks application of 17 U.S.C. 1401(f)(5)(B)(iii), such as names that the public would be likely to use to search for the transmitting entity in the Copyright Office’s online directory of transmitting entities publicly performing pre-1972 sound recordings by means of digital audio transmission, including names under which the transmitting entity is doing business and other commonly used names. Separate legal entities are not considered alternate names. (e) Fee. The filing fee to submit a notice of contact information pursuant to this section is prescribed in § 201.3(c). Dated: October 11, 2018. Karyn A. Temple, Acting Register of Copyrights and Director of the U.S. Copyright Office. Approved by: Carla D. Hayden, Librarian of Congress. [FR Doc. 2018–22518 Filed 10–15–18; 8:45 am] BILLING CODE 1410–30–P POSTAL REGULATORY COMMISSION 39 CFR Part 3010 [Docket No. RM2016–6; Order No. 4850] Mail Preparation Changes Postal Regulatory Commission. Final rule. AGENCY: ACTION: The Commission adopts a final rule concerning mail preparation changes. The rule as adopted removes reference to procedures relying on the existence of a substantive standard for mail preparation changes in response to the recent decision in United States Postal Serv. v. Postal Reg. Comm’n, 886 F.3d 1253 (D.C. Cir. 2018). DATES: Effective November 15, 2018. FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at 202–789–6820. SUPPLEMENTARY INFORMATION: SUMMARY: E:\FR\FM\16OCR1.SGM 16OCR1

Agencies

[Federal Register Volume 83, Number 200 (Tuesday, October 16, 2018)]
[Rules and Regulations]
[Pages 52150-52154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-22518]


=======================================================================
-----------------------------------------------------------------------

LIBRARY OF CONGRESS

 Copyright Office

37 CFR Part 201

[Docket No. 2018-7]


Filing of Schedules by Rights Owners and Contact Information by 
Transmitting Entities Relating to Pre-1972 Sound Recordings

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

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The U.S. Copyright Office is issuing interim regulations 
pursuant to the Classics Protection and Access Act, title II of the 
recently enacted Orrin G. Hatch-Bob Goodlatte Music Modernization Act. 
These regulations pertain to the filing of schedules by rights owners 
listing their sound recordings fixed before February 15, 1972, and the 
filing of contact information by entities publicly performing these 
sound recordings by means of digital audio transmission. As required 
under the Act, the Office is also specifying how individuals may 
request timely notification of the filing of such schedules with the 
Office. These regulations are issued on an interim basis with 
opportunity for comment to comply with statutory requirements and to 
ensure that both rights owners and transmitting entities can promptly 
make use of these new filing mechanisms to protect their respective 
legal interests. The Office welcomes comment on these interim rules.

DATES: The effective date of the interim regulations is October 16, 
2018. Written comments must be received no later than 11:59 p.m. 
Eastern Time on November 15, 2018.

ADDRESSES: For reasons of government efficiency, the Copyright Office 
is using the regulations.gov system for the submission and posting of 
public comments in this proceeding. All comments are therefore to be 
submitted electronically through regulations.gov. Specific instructions 
for submitting comments are available on the Copyright Office's website 
at https://www.copyright.gov/rulemaking/pre1972-soundrecordings-schedules/. If electronic submission of comments is not feasible due to 
lack of access to a computer and/or the internet, please contact the 
Office using the contact information below for special instructions.

FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and 
Associate Register of Copyrights, by email at [email protected], 
Anna Chauvet, Assistant General Counsel, by email at 
[email protected], or Jason E. Sloan, Assistant General Counsel, by 
email at [email protected]. Each can be contacted by telephone by 
calling (202) 707-8350.

SUPPLEMENTARY INFORMATION: 

I. Background

    On October 11, 2018, the president signed into law the Orrin G. 
Hatch-Bob Goodlatte Music Modernization Act,

[[Page 52151]]

H.R. 1551 (``MMA''). Title II of the MMA, the Classics Protection and 
Access Act, created chapter 14 of the copyright law, title 17, United 
States Code, which, among other things, extends remedies for copyright 
infringement to owners of sound recordings fixed before February 15, 
1972 (``Pre-1972 Sound Recordings''). Under the provision, rights 
owners may be eligible to recover statutory damages and/or attorneys' 
fees for the unauthorized use of their Pre-1972 Sound Recordings if 
certain requirements are met.
    Specifically, to be eligible for these remedies, rights owners must 
typically file schedules listing their Pre-1972 Sound Recordings 
(``Pre-1972 Schedules'') with the U.S. Copyright Office (the 
``Office''), which are then indexed into the Office's public 
records.\1\ The remedies are only available for unauthorized uses of a 
recording that have occurred more than 90 days after indexing.\2\ Pre-
1972 Schedules must include the name of the rights owner, title, and 
featured artist for each recording listed, and ``such other 
information, as practicable, that the Register of Copyrights prescribes 
by regulation.'' \3\ The filing requirement ``is designed to operate in 
place of a formal registration requirement that normally applies to 
claims involving statutory damages.'' \4\ In addition, the Pre-1972 
Schedules are important to the Act's new exemption for noncommercial 
uses of Pre-1972 Sound Recordings that are not being commercially 
exploited.\5\ Under that provision, persons seeking to use the 
exemption are exempt from liability for unauthorized use if they make a 
``good faith, reasonable search for'' a given sound recording in the 
Office's records of Pre-1972 Schedules before determining that the 
recording is not being commercially exploited.\6\ In establishing a 
filing mechanism for Pre-1972 Schedules, the Office must also provide a 
means for individuals to request and receive timely notification when 
such filings are indexed into the Office's public record.\7\
---------------------------------------------------------------------------

    \1\ 17 U.S.C. 1401(f)(5)(A)(i)(I)-(II).
    \2\ Id. 1401(f)(5)(A)(i)(II).
    \3\ Id. 1401(f)(5)(A)(i)(I).
    \4\ H.R. Rep. No. 115-651, at 16 (2018); see S. Rep. No. 115-
339, at 18 (2018); 17 U.S.C. 412 (stating that generally ``no award 
of statutory damages or of attorney's fees . . . Shall be made for . 
. . any infringement of copyright in an unpublished work commenced 
before the effective date of its registration'' or ``any 
infringement of copyright commenced after first publication of the 
work and before the effective date of its registration, unless such 
registration is made within three months after the first publication 
of the work'').
    \5\ 17 U.S.C. 1401(c)(1)(A)(i). The Copyright Office is 
separately issuing a notice of inquiry related to regulations the 
Register must promulgate regarding this exception. See id. 
1401(c)(3), (5)(A).
    \6\ Id. 1401(c)(1)(A).
    \7\ Id. 1401(f)(5)(A)(ii)(II)-(III).
---------------------------------------------------------------------------

    In addition, rights owners must provide specific notice of 
unauthorized use to certain entities that were previously transmitting 
Pre-1972 Sound Recordings, before pursuing certain remedies against 
them. To be entitled to receive direct notice of unauthorized activity 
from a rights owner, an entity must have been publicly performing a 
Pre-1972 Sound Recording by means of digital audio transmission at the 
time of enactment of section 1401 and must file its contact information 
with the Copyright Office within 180 days of enactment, that is, by 
April 9, 2019.\8\ Where a valid notice of contact information has been 
filed, the rights owner may be eligible to obtain statutory damages 
and/or attorneys' fees only after sending the transmitting entity a 
notice stating that it is not legally authorized to use the Pre-1972 
Sound Recording, and identifying the Pre-1972 Sound Recording in a 
schedule conforming to the requirements by the Office for filing Pre-
1972 Schedules.\9\ In addition, the unauthorized use must have occurred 
90 days after the entity receives the notice.\10\ After April 9, 2019, 
the Office cannot accept any new filings of contact information by 
transmitting entities.\11\ For any eligible transmitting entity that 
does not file its contact information by April 9, 2019, rights owners 
are not obligated to send it a direct notice of unauthorized use prior 
to becoming eligible for statutory damages and/or attorneys' fees.\12\ 
Rather, as described above, rights owners would file Pre-1972 Schedules 
with the Copyright Office, and they would become eligible for these 
remedies for unauthorized uses of a recording occurring more than 90 
days after indexing of the schedules.\13\
---------------------------------------------------------------------------

    \8\ Id. 1401(f)(5)(B)(i)-(ii).
    \9\ Id. 1401(f)(5)(B)(iii).
    \10\ Id. 1401(f)(5)(B)(iii)(I).
    \11\ Id. 1401(f)(5)(B)(ii).
    \12\ H.R. Rep. No. 115-651, at 16 (2018); see S. Rep. No. 115-
339, at 19 (2018).
    \13\ 17 U.S.C. 1401(f)(5)(A).
---------------------------------------------------------------------------

II. Interim Rule

    The Office promulgates the following interim rule to establish and 
govern the filing of Pre-1972 Schedules, the filing of contact 
information by entities publicly performing Pre-1972 Sound Recordings 
by means of digital audio transmission at the time of enactment of 
section 1401 (``Notice of Contact Information''), and the means by 
which individuals may request and receive timely notification when Pre-
1972 Schedules are indexed into the Office's public records.

A. Pre-1972 Schedules

    Under the interim rule, rights owners may file Pre-1972 Schedules 
with the Office using a form provided on the Office's website. At 
present, the form is an Excel spreadsheet template. This format is 
required so that the Office can timely ingest the Pre-1972 Schedules 
and index them into a searchable database available to prospective 
users, including persons who may otherwise wish to make noncommercial 
uses of these works, and the general public. The database of Pre-1972 
Schedules is available on the Office's website at https://copyright.gov/music-modernization/pre1972-soundrecordings/search-soundrecordings.html.
    For each sound recording, the Pre-1972 Schedule must include the 
rights owner's name, the sound recording title, and the featured 
artist. Rights owners may also include additional optional information 
pursuant to the instructions on the form and the Office's website. For 
example, the Pre-1972 Schedule may include, for each sound recording, 
album title information, any alternate sound recording title(s), the 
publication date, the label name, and the rights owner's contact 
information. A rights owner may elect to include this optional 
information on a recording-by-recording basis. In addition, the 
individual submitting the Pre-1972 Schedule must certify that she has 
appropriate authority to submit the schedule and that all information 
submitted to the Office is true, accurate, and complete to the best of 
the individual's knowledge, and is made in good faith. The Office may 
reject any Pre-1972 Schedule that fails to comply with these 
requirements or any additional requirements provided on the Office's 
website or the form itself.
    As noted above, for a rights owner to be eligible to recover 
statutory damages and/or attorneys' fees for the unauthorized use of a 
Pre-1972 Sound Recording, the use must occur at least 90 days after a 
Pre-1972 Schedule that includes the recording is ``indexed into the 
public records of the Copyright Office'' \14\ (or 90 days after a 
transmitting entity receives direct notice of unauthorized use, if 
applicable \15\). Under the interim rule, a Pre-1972 Schedule will be 
considered ``indexed'' once it is made publicly available through the 
Office's online database of Pre-1972 Schedules.
---------------------------------------------------------------------------

    \14\ Id. 1401(f)(5)(A)(i)(II).
    \15\ Id. 1401(f)(5)(B)(iii)(I).

---------------------------------------------------------------------------

[[Page 52152]]

    The interim rule also states that if ownership of a Pre-1972 Sound 
Recording changes after its inclusion in a Pre-1972 Schedule filed with 
the Office, the Office will consider the schedule to be effective as to 
any successor in interest. A successor in interest may, but is not 
required to file a new schedule. The Office invites public comments on 
whether it should accept transfers of rights ownership and other 
documents pertaining to a Pre-1972 Sound Recording (excluding Pre-1972 
Schedules) for recordation, even though they are not transfers of 
copyright ownership or documents pertaining to a copyright under 17 
U.S.C. 205.
    At present, the Office has not implemented a means for rights 
owners to correct limited mistakes in Pre-1972 Schedules indexed into 
the Office's public records (e.g., accidentally misspelling the title 
of a sound recording or including an errant title). Presently, rights 
owners can file a new Pre-1972 Schedule listing the sound recording for 
which incorrect information was indexed, but the original and new Pre-
1972 Schedules would coexist in the Office's database of Pre-1972 
Schedules, and each schedule would have its own index date. This 
treatment is consistent with the Copyright Office's recordation 
functions generally, although the Office is currently evaluating 
comments requesting a method for correcting errors, and has implemented 
a limited provision permitting corrections for electronic title 
lists.\16\ The Office invites public comment on whether and how to 
provide a mechanism for the correction of limited mistakes in Pre-1972 
Schedules, or adding supplemental information about a sound recording, 
including the potential effect on a Schedule's index date and how to 
keep administrative costs low.
---------------------------------------------------------------------------

    \16\ See Modernizing Copyright Recordation, Interim Rule, 82 FR 
52213, 52217 (Nov. 13, 2017). The Office notes, however, that 
permitting corrections in electronic title lists (``ETL'') would 
differ from permitting corrections in Pre-1972 Schedules. An ETL is 
not considered part of the recorded document; rather an ETL is only 
used administratively to populate the Office's public record (as 
opposed to manually inputting information about the document into 
the Office's public record).
---------------------------------------------------------------------------

    As required by the Music Modernization Act, the interim regulations 
also confirm that persons may request timely notification of when Pre-
1972 Schedules are indexed into the Office's public records by 
following the instructions provided by the Copyright Office on its 
website. Presently, individuals requesting such notification can 
subscribe to a weekly email through a service similar to the Office's 
NewsNet service, which will provide a link to the Office's online 
database of indexed Pre-1972 Schedules. The Office's searchable 
database defaults to listing the sound recordings with the most recent 
index dates first, so individuals should easily be able to identify 
recently indexed filings.
    As with similar types of filings made with the Office, the interim 
rule states that the Office does not review Pre-1972 Schedules for 
legal sufficiency, interpret their content, or screen them for errors 
or discrepancies.\17\ Rather, the Office's review is limited to whether 
the procedural requirements established by the Office (including 
payment of the proper filing fee) have been met. Rights owners are 
therefore cautioned to review and scrutinize schedules to assure their 
legal sufficiency before submitting them to the Office.
---------------------------------------------------------------------------

    \17\ 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'' or ``errors or 
discrepancies'' (see 37 CFR 201.18(g)), and agent designations made 
pursuant to section 512(c)(2) without any examination.
---------------------------------------------------------------------------

    Regarding filing fees, the Copyright Act grants the Office 
authority to establish, adjust, and recover fees for services provided 
to the public.\18\ The Office concludes that during the interim period, 
the appropriate fee to file a Pre-1972 Schedule will be the same as the 
current fee to record a notice of intention to make and distribute 
phonorecords under section 115 (``NOI'').\19\ The Office anticipates 
that the processing of Pre-1972 Schedules will be analogous to that of 
processing electronic NOIs, and so the fee should be the same.\20\ 
There will be no fee for individuals to request and receive timely 
notifications of when Pre-1972 Schedules are indexed into the Office's 
public records.
---------------------------------------------------------------------------

    \18\ See 17 U.S.C. 708.
    \19\ 37 CFR 201.3(e)(1) (stating cost to record section 115 NOI 
is $75, with an additional $10 fee per group of 1 to 100 additional 
titles for electronic filing).
    \20\ Basing the cost of a service on the cost for a similar 
service is appropriate. See Copyright Office Fees, 83 FR 24045, 
24059 (May 24, 2018) (proposing setting new fees at the same level 
for ``analogous'' services). In 2017, Booz Allen Hamilton conducted 
a study of the Office's most recent fee structure. When asked 
whether existing rates could be leveraged for new group registration 
options, it concluded it was appropriate if the work required was of 
a similar grade and compensation level. Booz Allen Hamilton, U.S. 
Copyright Office, Fee Study Question and Answers (Dec. 2017), 
https://www.copyright.gov/rulemaking/feestudy2018/fee_study_q&a.pdf.
---------------------------------------------------------------------------

B. Notices of Contact Information

    Under the interim rule, transmitting entities may file a Notice of 
Contact Information with the Office using a form and instructions 
specified on the Office's website. The Office is using pay.gov to 
receive these Notices after determining that it is the best available 
method to process these filings within the six-month window permitted 
under the statute.
    The Notice of Contact Information must include the legal name, 
email address, and physical street address of the transmitting entity 
to which rights owners should send notifications of claimed violations 
of 17 U.S.C. 1401(a).\21\ Related or affiliated transmitting entities 
that are separate legal entities (e.g., corporate parents and 
subsidiaries) are considered separate transmitting entities, and each 
must file its own separate Notice of Contact Information. But the 
Notice of Contact Information may include alternate names for the 
transmitting entity that the public may use to identify a specific 
legal entity, including names under which the transmitting entity is 
doing business and other commonly used names. Separate legal entities 
are not considered alternate names. The Notice of Contact Information 
shall also include the website(s) and/or application(s) through which 
the transmitting entity publicly performs Pre-1972 Sound Recordings by 
means of digital audio transmission. Finally, the Notice of Contact 
Information must include a certification that the transmitting entity 
was publicly performing Pre-1972 Sound Recordings by means of digital 
audio transmission as of October 11, 2018, that the individual 
submitting the notice has appropriate authority to submit the notice, 
and that all information submitted to the Office is true, accurate, and 
complete to the best of the individual's knowledge, and is made in good 
faith. The Office may reject any Notice of Contact Information that 
fails to comply with these requirements or any additional requirements 
provided on the Office's website or the form itself.
---------------------------------------------------------------------------

    \21\ The Office is requiring a physical street address so that 
rights owners may use delivery methods that allow for tracking and/
or delivery confirmation.
---------------------------------------------------------------------------

    If an entity submits a Notice of Contact Information following the 
instructions provided by the Office, including paying the appropriate 
fee, the Office will make the Notice publicly available in a searchable 
online directory, available on the Office's website at https://
copyright.gov/music-modernization/pre1972-soundrecordings/notices-
contact-

[[Page 52153]]

information.html. If a transmitting entity includes alternate names in 
its Notice of Contact Information, users will be able to search on 
those names to locate the transmitting entity's Notice of Contact 
Information.
    The Office concludes that during the interim period, the 
appropriate fee to file a Notice of Contact Information will be similar 
to the fee previously in effect for service providers to designate an 
agent to receive notifications of claimed copyright infringement under 
17 U.S.C. 512(c).\22\ The Office anticipates that the processing of 
Notices of Contact Information will be analogous to how designations of 
agents were processed prior to the existing Digital Millennium 
Copyright Act (``DMCA'') designated agent directory.\23\ Following that 
model, the interim rule assesses an additional cost to process 
alternate names submitted by the transmitting entity.\24\
---------------------------------------------------------------------------

    \22\ 37 CFR 201.3(c)(17) (2016) (cost of $105 to record 
designation of agent under section 512(c)(2), with additional $35 
fee per group of 1 to 10 additional names). In 2016, the Office 
launched a new database to designate an agent, which required less 
Office processing and so the Office lowered the filing fee to $6. 37 
CFR 201.3(c)(17) (2017).
    \23\ See Old Directory of DMCA Designated Agents 1998-2016, U.S. 
Copyright Office, https://www.copyright.gov/onlinesp/list/a_agents.html.
    \24\ Because of the time sensitivity regarding the processing of 
Notices of Contact Information and additional work required by the 
Office, the additional cost will be $35 per alternate name listed.
---------------------------------------------------------------------------

III. Request for Comments

    These interim regulations will go into effect immediately after 
publication of this document in the Federal Register. Comments will be 
due 30 days thereafter. The Copyright Office is issuing these interim 
regulations after finding, for good cause, that notice and public 
procedure prior to their issuance would be impracticable and contrary 
to the public interest.\25\ The MMA requires swift action by the 
Office. The Office must issue regulations regarding the filing of 
Notices of Contact Information within 30 days of enactment, and 
transmitting entities have only 180 days within which they may file 
these Notices.\26\ Similarly, while the Office has 180 days to 
establish regulations regarding the form and submission of Pre-1972 
Schedules, this filing serves as a gating factor to rights owners being 
eligible for statutory damages and/or attorneys' fees for unauthorized 
uses of Pre-1972 Sound Recordings, as well as the ability of persons to 
search these schedules before determining whether a given sound 
recording is being commercialized or is available for the noncommercial 
use exception.\27\ The interim rule will also inform the Office's 
concurrent rulemaking regarding the criteria for a good faith search to 
make use of the exception for noncommercial uses of sound 
recordings.\28\ The Office concludes that a prompt interim rule best 
serves the legal interests of all relevant stakeholders as well as the 
general public. Thus, notice and comment is not required under the 
Administrative Procedure Act.\29\
---------------------------------------------------------------------------

    \25\ In the past, the Copyright Office has similarly issued 
interim rules upon the enactment of legislation before soliciting 
public comments. See, e.g., Freedom of Information Act Regulations, 
82 FR 9505, 9506 (Feb. 7, 2017) (issuing interim rule to implement 
the FOIA Improvements Act because ``allowing for notice and public 
procedure prior to the issuance of . . . interim regulations would 
be impracticable''); Designation of Agent to Receive Notification of 
Claimed Infringement, 63 FR 59233, 59234 (Nov. 3, 1998) (issuing 
interim rule regarding designation of agent after enactment of the 
DMCA because ``online service providers may wish immediately to 
designate agents to receive notification of claimed infringement'').
    \26\ 17 U.S.C. 1401(f)(5)(B).
    \27\ Id. 1401(c)(1)(A), (f)(5)(A).
    \28\ Id. 1401(c)(1)(A).
    \29\ See 5 U.S.C. 553(b), (d)(3); Phila. Citizen in Action v. 
Schweiker, 669 F.2d 877, 884-85 (3d Cir. 1982).
---------------------------------------------------------------------------

List of Subjects in 37 CFR Part 201

    Copyright, General provisions.

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. Amend Sec.  201.3 as follows:
0
a. Redesignate paragraphs (c)(19) and (20) as paragraphs (c)(21) and 
(22), respectively.
0
b. Add new paragraphs (c)(19) and (20) to read as follows:


Sec.  201.3  Fees for registration, recordation, and related services, 
special services, and services performed by the Licensing Division.

* * * * *
    (c) * * *

------------------------------------------------------------------------
        Registration, recordation and related services          Fees ($)
------------------------------------------------------------------------
 
                              * * * * * * *
(19) Notice of contact information for transmitting entities         105
 publicly performing pre-1972 sound recordings by means of
 digital audio transmission, or amendment of contact
 information.................................................
Alternate names (each).......................................         35
(20) Schedule of pre-1972 sound recordings (single title)....         75
Additional titles (per group of 1 to 100 titles).............         10
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *

0
3. Amend Sec.  201.4 by adding paragraphs (b)(12) and (13) to read as 
follows:


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

* * * * *
    (b) * * *
    (12) Notices of contact information for transmitting entities 
publicly performing pre-1972 sound recordings by means of digital audio 
transmission (17 U.S.C. 1401(f)(5)(B); see Sec.  201.36).
    (13) Schedules of pre-1972 sound recordings (17 U.S.C. 
1401(f)(5)(A); see Sec.  201.35).
* * * * *

0
4. Add Sec.  201.35 to read as follows:


Sec.  201.35  Schedules of pre-1972 sound recordings.

    (a) General. This section prescribes the rules under which rights 
owners, pursuant to 17 U.S.C. 1401(f)(5)(A), may file schedules listing 
their pre-1972 sound recordings with the Copyright Office to be 
eligible for statutory damages and/or attorneys' fees for violations of 
17 U.S.C. 1401(a).
    (b) Definitions. For purposes of this section:
    (1) Unless otherwise specified, the terms used have the meanings 
set forth in 17 U.S.C. 1401.

[[Page 52154]]

    (2) A pre-1972 sound recording is a sound recording fixed before 
February 15, 1972.
    (c) Form and submission. A rights owner seeking to comply with 17 
U.S.C. 1401(f)(5)(A) must submit a schedule listing the owner's pre-
1972 sound recordings using an appropriate form provided by the 
Copyright Office on its website and following the instructions for 
completion and submission provided on the Office's website or the form 
itself. The Office may reject any submission that fails to comply with 
these requirements.
    (d) Content. A schedule of pre-1972 sound recordings shall contain 
the following:
    (1) For each sound recording listed, the right's owner name, sound 
recording title, and featured artist;
    (2) A certification that the individual submitting the schedule of 
pre-1972 sound recordings has appropriate authority to submit the 
schedule and that all information submitted to the Office is true, 
accurate, and complete to the best of the individual's knowledge, 
information, and belief, and is made in good faith.
    (3) For each sound recording listed, the rights owner may opt to 
include additional information as permitted and in the format specified 
by the Office's form or instructions, such as publication date, or 
alternate title information.
    (e) Transfer of rights ownership. If ownership of a pre-1972 sound 
recording changes after its inclusion in a schedule filed with the 
Office under this section, the Office will consider the schedule to be 
effective as to any successor in interest. A successor in interest may, 
but is not required, to file a new schedule under this section.
    (f) Legal sufficiency of schedules. The Copyright Office does not 
review schedules submitted under paragraph (c) of this section for 
legal sufficiency, interpret their content, or screen them for errors 
or discrepancies. The Office's review is limited to whether the 
procedural requirements established by the Office (including payment of 
the proper filing fee) have been met. Rights owners are therefore 
cautioned to review and scrutinize schedules to assure their legal 
sufficiency before submitting them to the Office.
    (g) Filing date. The date of filing of a schedule of pre-1972 sound 
recordings is the date when a proper submission, including the 
prescribed fee, is received in the Copyright Office. The filing date 
may not necessarily be the same date that the schedule, for purposes of 
17 U.S.C. 1401(f)(5)(A)(i)(II), is indexed into the Office's public 
records.
    (h) Fee. The filing fee to submit a schedule of pre-1972 sound 
recordings pursuant to this section is prescribed in Sec.  201.3(c).
    (i) Third-party notification. A person may request timely 
notification of filings made under this section by following the 
instructions provided by the Copyright Office on its website.

0
5. Add Sec.  201.36 to read as follows:


Sec.  201.36  Notices of contact information for transmitting entities 
publicly performing pre-1972 sound recordings.

    (a) General. This section prescribes the rules under which 
transmitting entities may file contact information with the Copyright 
Office pursuant to 17 U.S.C. 1401(f)(5)(B).
    (b) Definitions. For purposes of this section:
    (1) Unless otherwise specified, the terms used have the meanings 
set forth in 17 U.S.C. 1401.
    (2) A pre-1972 sound recording is a sound recording fixed before 
February 15, 1972.
    (3) A transmitting entity is an entity that, as of October 11, 
2018, publicly performs pre-1972 sound recordings by means of digital 
audio transmission.
    (c) Form and submission. A transmitting entity seeking to comply 
with 17 U.S.C. 1401(f)(5)(B) must submit contact information using an 
appropriate form specified by the Copyright Office on its website and 
following the instructions for completion and submission provided on 
the Office's website or the form itself. The Office may reject any 
submission that fails to comply with these requirements. No notice or 
amended notice received after April 9, 2019 will be accepted by the 
Office.
    (d) Content. A notice submitted under paragraph (c) of this section 
shall contain the following, in addition to any other information 
required on the Office's form or website:
    (1) The full legal name, email address, and physical street address 
of the transmitting entity to which rights owners should send 
notifications of claimed violations of 17 U.S.C. 1401(a). A post office 
box may not be substituted for the street address of a transmitting 
entity. Related or affiliated transmitting entities that are separate 
legal entities (e.g., corporate parents and subsidiaries) are 
considered separate transmitting entities, and each must file its own 
separate notice of contact information.
    (2) The website(s) and/or application(s) through which the 
transmitting entity publicly performs pre-1972 sound recordings by 
means of digital audio transmission.
    (3) A certification that the transmitting entity was publicly 
performing pre-1972 sound recordings by means of digital audio 
transmission as of October 11, 2018.
    (4) A certification that the individual submitting the notice has 
appropriate authority to submit the notice and that all information 
submitted to the Office is true, accurate, and complete to the best of 
the individual's knowledge, information, and belief, and is made in 
good faith.
    (5) The transmitting entity may opt to include alternate names for 
which the transmitting entity seeks application of 17 U.S.C. 
1401(f)(5)(B)(iii), such as names that the public would be likely to 
use to search for the transmitting entity in the Copyright Office's 
online directory of transmitting entities publicly performing pre-1972 
sound recordings by means of digital audio transmission, including 
names under which the transmitting entity is doing business and other 
commonly used names. Separate legal entities are not considered 
alternate names.
    (e) Fee. The filing fee to submit a notice of contact information 
pursuant to this section is prescribed in Sec.  201.3(c).

    Dated: October 11, 2018.
Karyn A. Temple,
Acting Register of Copyrights and Director of the U.S. Copyright 
Office.

    Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2018-22518 Filed 10-15-18; 8:45 am]
 BILLING CODE 1410-30-P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.