Filing of Schedules by Rights Owners and Contact Information by Transmitting Entities Relating to Pre-1972 Sound Recordings, 10679-10685 [2019-05549]

Download as PDF Federal Register / Vol. 84, No. 56 / Friday, March 22, 2019 / Rules and Regulations Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above. E. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. F. Environment We have analyzed this rule under Department of Homeland Security Directive 023–01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone to be enforced for only seven hours during the vessel YP–702 salvage operations that will prohibit entry within 100 yards of vessels and equipment being used by personnel to remove the sunken vessel. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023–01–001–01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES. G. Protest Activities The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without VerDate Sep<11>2014 16:22 Mar 21, 2019 Jkt 247001 jeopardizing the safety or security of people, places or vessels. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: ■ Authority: 46 U.S.C. 70034, 70051; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.T05–0167 to read as follows: 10679 FM marine channel 16 providing updates about the zone. (d) Enforcement officials. The U.S. Coast Guard may be assisted in the patrol and enforcement of the safety zone by Federal, State, and local agencies. (e) Enforcement period. This section will be enforced from 9 a.m. until 4 p.m. on March 24, 2019, or if necessary due to inclement weather, those same hours on either March 25, 2019, or March 26, 2019. Dated: March 19, 2019. Joseph B. Loring, Captain, U.S. Coast Guard Captain of the Port Maryland-National Capital Region. [FR Doc. 2019–05550 Filed 3–21–19; 8:45 am] BILLING CODE 9110–04–P ■ LIBRARY OF CONGRESS § 165.T05–0167 Safety Zone; Patuxent River, Patuxent River, MD. Copyright Office (a) Location. The following area is a safety zone: All navigable waters of the Patuxent River within 100 yards of the vessel YP–702 in approximate position latitude 38°18′03.96″ N, longitude 076°27′39.90″ W, located at Patuxent River, MD. All coordinates refer to datum NAD 1983. (b) Definitions. As used in this section: Captain of the Port (COTP) means the Commander, U.S. Coast Guard Sector Maryland-National Capital Region. Designated representative means any Coast Guard commissioned, warrant, or petty officer who has been authorized by the Captain of the Port MarylandNational Capital Region to assist in enforcing the safety zone described in paragraph (a) of this section. (c) Regulations. (1) Under the general safety zone regulations in subpart C of this part, you may not enter the safety zone described in paragraph (a) of this section unless authorized by the COTP or the COTP’s designated representative. All vessels underway within this safety zone at the time it is activated are to depart the zone. (2) To request permission to enter, contact the COTP or the COTP’s representative by telephone at 410–576– 2693 or on Marine Band Radio VHF–FM channel 16 (156.8 MHz). The Coast Guard vessels enforcing this section can be contacted on Marine Band Radio VHF–FM channel 16 (156.8 MHz). (3) Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP’s designated representative. (4) The Coast Guard will issue a Broadcast Notice to Mariners via VHF– 37 CFR Part 201 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 [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. ACTION: Final rule. AGENCY: Pursuant to the Classics Protection and Access Act, title II of the Orrin G. Hatch–Bob Goodlatte Music Modernization Act (‘‘MMA’’), the U.S. Copyright Office is adopting as final a rule regarding 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. This rule largely finalizes the interim rule published on October 16, 2018, with some adjustments adopted in response to public comment. DATES: The effective date of the final rule is April 22, 2019. FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and Associate Register of Copyrights, by email at regans@copyright.gov, or Anna Chauvet, Assistant General Counsel, by email at achau@copyright.gov. Each can be contacted by telephone by calling (202) 707–8350. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background On October 16, 2018, the Copyright Office issued an interim rule with E:\FR\FM\22MRR1.SGM 22MRR1 10680 Federal Register / Vol. 84, No. 56 / Friday, March 22, 2019 / Rules and Regulations request for comments regarding certain filings necessitated by title II of the MMA, the Classics Protection and Access Act (the ‘‘Act’’).1 As explained in the interim rule, the 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 Copyright Office, which are then indexed into the Office’s public records.2 The remedies are only available for unauthorized uses of a sound recording that have occurred more than 90 days after indexing.3 Pre1972 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.’’ 4 The filing requirement ‘‘is designed to operate in place of a formal registration requirement that normally applies to claims involving statutory damages.’’ 5 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.6 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.7 In establishing a filing mechanism for Pre1972 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.8 FR 52150 (Oct. 16, 2018). U.S.C. 1401(f)(5)(A)(i)(I)–(II). 3 Id. at 1401(f)(5)(A)(i)(II). 4 Id. at 1401(f)(5)(A)(i)(I). 5 H.R. Rep. No. 115–651, at 16 (2018); see S. Rep. No. 115–339, at 18 (2018). 6 17 U.S.C. 1401(c)(1)(A)(i). The Copyright Office has issued a separate notice of proposed rulemaking regarding the exception for noncommercial uses. 84 FR 1661 (Feb. 5, 2019). 7 Id. at 1401(c)(1)(A). 8 Id. at 1401(f)(5)(A)(ii)(II)–(III). Under the Act, rights owners must also 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, 2019.9 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 directly 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.10 For any eligible transmitting entities that do not file contact information by April 9, 2019, rights owners may seek statutory damages and/or attorneys’ fees resulting from unauthorized uses by those entities after filing Pre-1972 Schedules as described above.11 The interim rule established regulations governing each of these new filing mechanisms: The filing of Pre1972 Schedules by rights owners, the filing of contact information by entities publicly performing these sound recordings by means of digital audio transmission, and specifying how individuals may request timely notification of the filing of Pre-1972 Schedules with the Office.12 In response to its request for public comment, the Office received one joint comment from the American Association of Independent Music (‘‘A2IM’’), Recording Industry Association of America, Inc. (‘‘RIAA’’), and SoundExchange, Inc.13 Having reviewed and carefully considered this comment, the Office is now adopting the interim rule as final, with a few adjustments as described below. 1 83 2 17 VerDate Sep<11>2014 16:22 Mar 21, 2019 Jkt 247001 9 Id. at 1401(f)(5)(B)(i)–(ii). at 1401(f)(5)(B)(iii). A transmitting entity will be liable only for unauthorized uses occurring 90 days after receipt of the notice. See id. 11 H.R. Rep. No. 115–651, at 16 (2018); see S. Rep. No. 115–339, at 19 (2018). 12 83 FR 52150, 52153–54 (Oct. 16, 2018). 13 The comments submitted in response to the interim rule can be found on the Copyright Office’s website at https://www.copyright.gov/rulemaking/ pre1972-soundrecordings-schedules/. 10 Id. PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 II. Final Rule A. Pre-1972 Schedules 1. Content of Pre-1972 Schedules Under the interim rule, rights owners desiring to file Pre-1972 Schedules with the Office must use a form provided on the Office’s website,14 which is an Excel spreadsheet template. This format allows the Office to timely ingest the Pre-1972 Schedules and index them into an online searchable database available to prospective users, including persons who may otherwise wish to make noncommercial uses of these works, and the general public.15 Currently, for each sound recording, the Pre-1972 Schedule must include the rights owner’s name, sound recording title, and featured artist.16 Rights owners may also include additional optional information pursuant to the instructions on the form and the Office’s website, namely, album title information, alternate sound recording title(s), publication date, label, and rights owner’s contact information.17 In their joint comments, A2IM, RIAA, and SoundExchange request that the following fields be added to the Office’s Pre-1972 Schedule form: International Standard Recording Code (‘‘ISRC’’), sound recording version, and alternate artist name.18 They also ask the Office to group the three required fields together from left to right on the form, followed by the optional fields to the right.19 These suggestions have been adopted by the final rule. The Office agrees that including the ISRC will help to distinguish between different Pre-1972 Sound Recordings by the same artist with the same title, including with respect to the new exemption for noncommercial uses of Pre-1972 Sound Recordings that are not being commercially exploited.20 Accordingly, the final rule requires the ISRC to be included for each recording listed in a Pre-1972 Schedule, if known by the filer and practicable to include. Similarly, the final rule permits versions and alternate artist names to be provided on 14 37 CFR 201.35(c). Office received no comments regarding the Excel spreadsheet format or considering a Pre-1972 Schedule to be ‘‘indexed’’ once it is made publicly available through the Office’s online database of Pre-1972 Schedules. See 83 FR at 52151. The database of Pre-1972 Schedules is available on the Office’s website at https://copyright.gov/musicmodernization/pre1972-soundrecordings/searchsoundrecordings.html. 16 37 CFR 201.35(d)(1). 17 See id. at 201.35(d)(3). 18 A2IM, RIAA & SoundExchange Comments at 7. 19 Id. at 8. 20 17 U.S.C. 1401(c)(1)(A)(i). 15 The E:\FR\FM\22MRR1.SGM 22MRR1 Federal Register / Vol. 84, No. 56 / Friday, March 22, 2019 / Rules and Regulations an optional basis.21 While the final rule otherwise retains the required and optional fields from the interim rule, the Office has revised its Pre-1972 Schedule form so that the fields for rights owner’s name, the sound recording title, and the featured artist are grouped together from left to right, followed on the right by the ISRC and the optional fields. As noted by the Office in its rulemaking regarding the noncommercial use exception to unauthorized uses of Pre-1972 Sound Recordings, classical music sound recordings frequently require more information to sufficiently identify the sound recording.22 The final rule adopts a definition of ‘‘title’’ and ‘‘featured artist(s)’’ for pre-1972 sound recordings of classical music, including opera, as recently proposed in the noncommercial use exception rulemaking.23 Because the Office is proposing that users search the database of Pre-1972 Schedules using specialized terms for this genre to locate these recordings, this rule harmonizes the terms that rights owners are asked to list on the schedules. To the extent that the rule adopted through the noncommercial use rulemaking adjusts this definition, the Office may further reconcile this language. Regarding the name of the rights owner, A2IM, RIAA, and SoundExchange note that ‘‘there has been considerable consolidation in the recorded music business’’ and that because many Pre-1972 Sound Recordings were originally released on labels no longer in existence, the rights to these sound recordings ‘‘are sometimes exercised by a label in existence today in its own name on behalf of the original owner.’’ 24 They ask that the Office ‘‘borrow’’ from the language in 17 U.S.C. 1401(c)(6)(B)(i) and for each Pre-1972 Sound Recording listed in a Pre-1972 Schedule, allow ‘‘a person ‘authorized to act on behalf of the rights owner’ ’’ to be listed instead of the rights owner’s name.25 Because chapter 14 expressly requires that the Pre-1972 Schedule filed with the Office include the ‘‘rights owner of the sound recording,’’ 26 the Office declines to make this adjustment. Section 1401(c)(6)(B)(i), which concerns civil penalties for persons fraudulently filing opt-out notices for noncommercial uses, necessarily relates to the person filing the opt-out notices, rather than the 21 The version of a Pre-1972 Sound Recording may include, among other things, its length of playing time or location of performance. 22 84 FR 1661, 1669 (Feb. 5, 2019). 23 Id. at 1676. 24 A2IM, RIAA & SoundExchange Comments at 9. 25 Id. 26 17 U.S.C. 1401(f)(5)(A)(i)(I). VerDate Sep<11>2014 16:22 Mar 21, 2019 Jkt 247001 requirement to identify a particular rights owner.27 The legislative history also indicates that the Office’s database should reflect ‘‘works by copyright owners.’’ 28 The final rule does clarify, however, that an authorized agent of a rights owner may submit the filing on behalf of the rights owner. A2IM, RIAA, and SoundExchange also assert that the Office’s database of Pre-1972 Schedules should allow for ‘‘robust search[ing],’’ including ‘‘fuzzy searching’’ (e.g., search results yield results for common misspellings) and ‘‘wildcard searching’’ (i.e., allowing a user to search on a truncated version of a word with a wildcard character, such as an asterisk).29 The database of Pre1972 Schedules already allows for wildcard searching by using an asterisk to fill in partial words. The Office has updated the search instructions on its database web page so users are aware of this search capability. While the current technology does not permit ‘‘fuzzy’’ searching, that limitation is also noted on the web page to guide user expectations. The following fields in the Office’s database of Pre-1972 Schedules are now searchable: Rights owner, sound recording title (which includes alternate titles), album, label, featured artist (which includes alternate artist name(s)), and ISRC. A user can export and download the search results based on those fields into an Excel spreadsheet to view (and search) additional data. 2. Correcting or Supplementing Information Included in Filed Pre-1972 Schedules The interim rule did not create a mechanism for rights owners to correct limited mistakes or supplement information regarding sound recordings included in Pre-1972 Schedules indexed into the Office’s public record. Instead, the Office invited public comment on whether and how to provide a mechanism for the correction of mistakes or for supplementing information in Pre-1972 Schedules, including the potential effect on a Schedule’s index date and how to keep administrative costs low.30 In response, A2IM, RIAA, and SoundExchange maintain that the Office 27 Id. at 1401(c)(6)(B)(i). The final rule retains the requirements that the individual submitting the Pre1972 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. 28 H.R. Rep. No. 115–651 at 16; S. Rep. No. 115– 339 at 19. 29 A2IM, RIAA & SoundExchange Comments at 8–9. 30 83 FR at 52152. PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 10681 should allow rights owners (or their authorized agents) to correct limited mistakes, as well as supplement information included in already-filed Pre-1972 Schedules, without affecting a schedule’s index date.31 They note that limited mistakes may occur where Pre1972 Schedules list thousands of sound recordings, and that allowing supplementation will benefit users of the Office’s database of Pre-1972 Schedules—‘‘particularly those performing good faith, reasonable searches in connection with the potential noncommercial use of a pre-72 recording’’ under section 1401(c)— ‘‘because users will be able to search a greater number of fields and use a wider array of search terms, thus increasing the likelihood of finding a match if one exists.’’ 32 They suggest that rights owners should be allowed to file Pre1972 Schedules with the required fields to secure an index date, and supplement information for those Pre-1972 Sound Recordings at a later date.33 They propose having ‘‘a secure web portal’’ that allows rights owners to supplement information and correct mistakes relating to their Pre-1972 Sound Recordings.34 Considering these concerns in light of the purpose of the Pre-1972 Schedules, which operates ‘‘in place of a formal registration requirement’’ for rights owners and also must be searched by users before claiming the noncommercial use exception for these recordings,35 the final rule adopts a provision allowing a rights owner (or her authorized agent) to correct or amplify information regarding a Pre1972 Sound Recording where that sound recording was included in a Pre1972 Schedule previously filed by or on behalf of that same rights owner. The rule will operate in a similar, but not identical, manner, to other filings accepted by the Office to correct or amplify previous filings, including supplementary registrations.36 31 A2IM, RIAA & SoundExchange Comments at 5. Commenters did not address the Office’s level of review of Pre-1972 Schedules under the interim rule, and the final rule retains a provision adopted on an interim basis specifying that the Office will not review Pre-1972 Schedules for legal sufficiency, interpret their content, or screen them for errors or discrepancies. 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. 32 Id. 33 Id. at 4–5. 34 Id. at 5–6. 35 H. Rep. No. 115–651 at 16. 36 See U.S. Copyright Office, About Supplementary Registration, https:// www.copyright.gov/eco/help-supplementary.html (last visited Mar. 4, 2019); U.S. Copyright Office, E:\FR\FM\22MRR1.SGM Continued 22MRR1 10682 Federal Register / Vol. 84, No. 56 / Friday, March 22, 2019 / Rules and Regulations Information regarding a Pre-1972 Sound Recording may be corrected if the information was incorrect at the time the Pre-1972 Schedule was submitted to the Office, or supplemented to include information that was omitted at the time the Pre-1972 Schedule was submitted to the Office. The rule provides that the operative index date for a given Pre-1972 Recording will change only in the event that information in one of the statutorily required fields (title, featured artist(s), and rights owner) is amended or amplified. As noted by A2IM, RIAA, and SoundExchange, the index date of a Pre-1972 Schedule is of ‘‘critical importance to rights owners, as it starts the running of a 90-day clock after which the listed sound recordings become eligible for statutory damages and attorneys’ fees.’’ 37 To encourage rights owners to supplement optional information regarding their Pre-1972 Sound Recordings, the final rule permits amending or supplementing information for an optional field or ISRC without losing the index date for the relevant Pre-1972 Sound Recording. But because the schedules serve a notice function for prospective licensees and other users of these recordings, the Office concludes that a new index date should attach when information in one of the three statutorily required fields changes, such that the earlier-filed schedule no longer provides the same notice as to those fields. To ensure transparency, as currently designed, links to filed Pre-1972 Schedules and Supplemental Pre-1972 Schedules (showing their respective index dates) will be provided through the Office’s database under the ‘‘More Info’’ tab for the relevant Pre-1972 Sound Recording. Due to technological constraints in the current database, the ‘‘Index Date’’ field displayed on the Copyright Office’s website for a given Pre-1972 Sound Recording will reflect the index date of the latest-filed schedule (which may not govern eligibility for statutory damages if it only amends or supplements information for an optional field). Accordingly, users are cautioned to Compendium of U.S. Copyright Office Practices sec. 1802 (3d ed.2017) (‘‘Compendium (Third)’’) (describing supplementary registration practices). Amended filings are also permitted for DMCA agent designations, contact information for transmitting entities publicly performing pre-1972 sound recordings by means of digital audio transmission, statements of account for cable operators, satellite carriers, or manufacturers or importers distributing digital audio recording devices or media, and notices of digital transmission of sound recording. See 37 CFR 201.3(c)(18)–(19), (e)(2), (e)(4) (providing filing fees for such amendments). 37 A2IM, RIAA & SoundExchange Comments at 4. VerDate Sep<11>2014 16:22 Mar 21, 2019 Jkt 247001 review the ‘‘More Info’’ tab or download information into an Excel spreadsheet for a given Pre-1972 Sound Recording to determine whether more than one schedule has been filed, which may or may not affect the operative index date.38 Rights owners (or their authorized agents) will be required to file a Supplemental Schedule of Pre-1972 Sound Recordings using a form and instructions specified 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 Supplemental Pre-1972 Schedules and index them into the Office’s database of Pre-1972 Schedules.39 For each Pre-1972 Sound Recording for which the rights owner desires to correct or supplement information, the Supplemental Pre-1972 Schedule must include the Copyright Office’s unique identifier assigned to that sound recording in the Office’s database.40 Because the data on the Supplemental Pre-1972 Schedule will overwrite the preexisting data displayed and searchable in the Office’s database, for each sound recording, the Supplemental Pre-1972 Schedule must include the rights owner’s name, sound recording title, featured artist(s), and, if known and practicable, ISRC (inclusive of any corrections or amendments to such information). The Supplemental Pre-1972 Schedule must also include all optional information the rights owner would like to provide to the Copyright Office (including information already provided to the Office on a previously filed Pre-1972 Schedule for that sound recording), inclusive of any corrections or amendments to such information. Finally, A2IM, RIAA, and SoundExchange request the ability to remove errantly listed recordings, without affecting the index date of the other recordings included on a Pre-1972 38 The Office has updated the search instructions on its database web page to note this limitation and guide user expectations. 39 A2IM, RIAA & SoundExchange suggest that a secure web portal be set up allowing owners to supplement their own schedules and correct their own mistakes. See A2IM, RIAA & SoundExchange Comments at 5–6. But as they anticipate, current technology precludes this option and in fact, severely limits the operational choices available to implement a supplementary filing option. Id. As requested, the Office will consider adjusting this functionality as part of its forthcoming technology upgrades. 40 The unique identifier is used by the Office to identify the sound recordings for which information should be updated when the Supplement Pre-1972 Schedule is ingested into the database. It can be located in Office’s database of Pre-1972 Schedules by clicking the ‘‘More Info’’ button in the line entry for a particular sound recording, or by downloading and exporting data for that sound recording into an Excel spreadsheet. PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 Schedule.41 The final rule will allow a rights owner (or her authorized agent) to remove a Pre-1972 Sound Recording from the Office’s database of Pre-1972 Schedules where the sound recording was included in a Pre-1972 Schedule filed by or on behalf of that same rights owner, without affecting the index date of the other recordings included on the schedule. A recording may be removed if there was a substantive defect in the Pre-1972 Schedule regarding the Pre1972 Sound Recording at the time the Pre-1972 Schedule was submitted to the Office, or, upon a showing of good cause, at the discretion of the Copyright Office. Similar to the Office’s process for voluntary cancellation of a copyright registration,42 a rights owner (or her authorized agent) will be required to file a Removal Form, using a form and instructions specified on the Office’s website. As currently envisioned, a Removal Form may not include more than one Pre-1972 Sound Recording to be deleted, and must include the sound recording title, featured artist(s), and the Copyright Office’s unique identifier assigned to that sound recording in the Office’s database. The Office will keep a record of Pre-1972 Sound Recordings removed from the Office’s database, and a timestamp of when each deletion occurs. Once removed, the sound recording is no longer considered ‘‘indexed’’ for purposes of eligibility to recover statutory damages and/or attorneys’ fees for the unauthorized use of that sound recording, or included in the Office’s database to preclude a user from taking advantage of the noncommercial use exception.43 The rights owner (or her agent) would need to file a new Pre-1972 Schedule containing the sound recording to become eligible to recover statutory damages and/or attorneys’ fees, or to preclude a user from taking advantage of the noncommercial use exception regarding that sound recording. 3. Filing Fees A2IM, RIAA, and SoundExchange request the ability to pay filing fees for Pre-1972 Schedules by credit card, check, money order, or bank draft, instead of by deposit account, as instructed on the Office’s website.44 In consideration of such comments, the 41 A2IM, RIAA & SoundExchange Comments at 5. Compendium (Third) sec. 1804(E). 43 17 U.S.C. 1401(f)(5)(A)(i)(I)–(II); id. at 1401(c)(1)(A)(i). 44 A2IM, RIAA & SoundExchange Comments at 9–10; Requirements and Instructions for Completing and Submitting Schedules of Pre-1972 Sound Recordings, U.S. Copyright Office, https:// www.copyright.gov/music-modernization/pre1972soundrecordings/schedulefiling-instructions.html. 42 See E:\FR\FM\22MRR1.SGM 22MRR1 Federal Register / Vol. 84, No. 56 / Friday, March 22, 2019 / Rules and Regulations Office will allow filers to pay filing fees for Pre-1972 Schedules, Supplemental Pre-1972 Schedules, and Removal Forms using either a credit card or a deposit account with the Office. So that schedules may be submitted to the Office electronically, a rights owner currently submits her Pre-1972 Schedule via email, along with a cover sheet providing her deposit account information to pay the filing fee. Under the final rule, if a filer wishes to pay using a credit card, instead of providing the deposit account information on the cover sheet, she should indicate her desire to pay by credit card on the cover sheet. The same process will be available for filers wishing to pay using a credit card to file Removal Forms. For privacy and security reasons, the filer should not provide credit card information on the cover sheet or Removal Form. Rather, the Office will call the filer for the credit card information. Because the processing of Pre-1972 Schedules, Supplemental Pre1972 Schedules, and Removal Forms will not occur until after the Office has obtained credit card information from the filer, filers are urged to provide accurate contact information on the cover sheet or Removal Form and to respond to the Office in a timely manner. Because the Office anticipates that the processing and indexing of Supplemental Pre-1972 Schedules will be similar to originating Pre-1972 Schedules, it is setting the fee for supplemental filings at the same amount. Similarly, because the Office anticipates that processing a Removal Form will be similar to the processing of a Pre-1972 Schedule including a single sound recording, it is setting the fee to file a Removal Form at the same amount. In line with its general approach to fee-setting, the Office will consider whether adjustment is necessary after data regarding these filings are available. As a technical change, the final rule also clarifies that the fee charged for Pre-1972 Schedules and Supplemental Pre-1972 Schedules is per sound recording, not per title, since the Copyright Office is encouraging rights owners to list alternate titles of recordings on schedules to improve the public record. C. Recordation of Transfers of Ownership Pertaining to Pre-1972 Sound Recordings The final rule retains the language of the interim rule providing that, if ownership of a Pre-1972 Sound Recording changes after its inclusion in a Pre-1972 Schedule filed with the VerDate Sep<11>2014 16:22 Mar 21, 2019 Jkt 247001 Office, the Office will consider the schedule to be effective as to any successor in interest.45 Accordingly, a successor in interest may, but is not required, to file a new schedule. The Office invited public comment on whether it should record transfers of rights ownership and other documents pertaining to a Pre-1972 Sound Recording, even though they are not transfers of copyright ownership or documents pertaining to a copyright under 17 U.S.C. 205.46 A2IM, RIAA, and SoundExchange responded that the Office should accept for recordation transfer documents and other documents pertaining to Pre-1972 Sound Recordings, contending that accepting such voluntarily-submitted information would serve a public notice function.47 The Office concludes that it may record transfers of ownership pertaining to Pre-1972 Sound Recordings through its established recordation processes.48 Section 1401(h)(1) provides that certain provisions relating to the transfers of copyright ownership set forth in sections 201 and 204 (including requirements for execution of transfers) of the Copyright Act ‘‘shall apply to a transfer’’ by a pre-1972 rights owner ‘‘to the same extent as with respect to a transfer of copyright ownership.’’ 49 In turn, section 205 authorizes the Copyright Office to record ‘‘transfer[s] of copyright ownership’’ under certain conditions, and the effective recordation of these documents provides 45 See A2IM, RIAA & SoundExchange Comments at 2–3 and fn. 1 (supporting interim rule, noting it parallels the registration requirement for copyrighted works, which are effective for purposes of eligibility for statutory damages and attorneys’ fees as to successors in interest). 46 83 FR at 52152. 47 A2IM, RIAA & SoundExchange Comments at 2–3. 48 A transfer of ownership ‘‘is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.’’ 17 U.S.C. 101. 49 Id. at 1401(h)(1)(A) (‘‘[S]ubsections (d) and (e) of section 201 and section 204 shall apply to a transfer described in subsection (l)(2)(B) to the same extent as with respect to a transfer of copyright ownership.’’); see id. at 1401(l)(2) (Defining ‘‘rights owner’’ in relevant part as ‘‘any person to which a right to enforce a violation of this section may be transferred, in whole or in part’’ under ‘‘subsections (d) and (e) of section 201 and section 204). Notably, chapter 14 alternatively defines ‘‘rights owner’’ as ‘‘the person that has the exclusive right to reproduce a sound recording under the laws of any State, as of the day before the date of enactment of this section.’’ Id. It therefore does not incorporate other provisions of chapter 2, such as those pertaining to initial ownership, works made for hire, contributions to collective works, or a mechanism for termination of transfers and licenses granted by the author. PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 10683 constructive notice of the facts stated in the recorded document.50 The Office has previously concluded that ‘‘any transfer that is valid under section 204 should be recordable under section 205.’’ 51 The Office concludes that it is prudent and sound for it to similarly accept transfers of ownership pertaining to Pre-1972 Sound Recordings for voluntary recordation into the Office’s public database pursuant to the general recordation requirements set forth in 37 CFR 201.4.52 That said, because registration is not available for U.S. Pre1972 Sound Recordings (instead, the Pre-1972 Schedules operate in lieu of a registration requirement), it is unclear whether recordation can provide the same statutory benefits of constructive notice and priority between conflicting transfers under section 205.53 Accordingly, the final rule mimics other Office regulations applying the Office’s general recordation rules to certain types of documents that do not actually pertain to copyrighted works, namely, those concerning mask works under chapter 9 and vessel designs under chapter 13.54 Because chapter 14 does not incorporate sections 203 or 304(c) or (d), this rule does not permit recordation of notices of termination of transfers and licenses pursuant to those sections and 37 CFR 201.10. Finally, A2IM, RIAA, and SoundExchange request, if practicable, that transfers of rights ownership and other documents be cross-referenced against an earlier-filed Pre-1972 Schedule to maximize the benefit of recordation.55 While the Office supports the goal of facilitating improved chainof-title information for these documents, as well as recorded documents more generally,56 its current technology does 50 Id. at 205. 51 Modernizing Copyright Recordation: Interim Rule, 82 FR 52213, 52215 (Nov. 13, 2017). 52 The relevant recordation regulation provides: ‘‘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.’’ 37 CFR 201.4(g). 53 17 U.S.C. 205(c)(2) (requiring that ‘‘registration has been made for the work’’ for constructive notice to attach). 54 37 CFR 211.2 (mask works); id. at 212.6 (vessel designs); see Compendium (Third) sec. 1203 (‘‘Mask works are not protected by copyright law.’’); id. at 1302 (‘‘Vessel design protection is not a form of copyright protection.’’). 55 A2IM, RIAA & SoundExchange Comments at 3–4. 56 See also 83 FR 52336, 52343 (Oct. 17, 2018) (soliciting information on how Copyright Office modernization should expand the online public record to connect registration and recordation E:\FR\FM\22MRR1.SGM Continued 22MRR1 10684 Federal Register / Vol. 84, No. 56 / Friday, March 22, 2019 / Rules and Regulations not permit linking recorded documents with its database of Pre-1972 Schedules. Meanwhile, the Office will provide notice in connection with its database of Pre-1972 Schedules that information pertaining to subsequent changes in ownership may be found in its public catalog; as noted, the Office will also accept additional schedules from successors-in-interest.57 D. Notices of Contact Information Under the interim rule, transmitting entities may currently file a Notice of Contact Information with the Office using a pay.gov form and following instructions specified on the Office’s website.58 A2IM, RIAA, and SoundExchange requested that individuals should ‘‘be permitted to receive timely notification of such filings by subscribing to a weekly email notification service,’’ similar to the email notification service instituted by the Office regarding recently-indexed Pre-1972 Schedules.59 The MMA, however, specifically requires a notification mechanism for indexed Pre- 1972 Schedules 60; there is no similar requirement relating to Notices of Contact Information. Moreover, because the Office may not accept Notices of Contact Information after April 9, 2019,61 establishing a notification service that would be operational for only a short period would not be an efficient use of resources.62 The Office’s online searchable directory currently allows searching by the name of a transmitting entity (and any alternate names), which should provide an easy way to determine whether a transmitting entity has filed a Notice of Contact Information. In sum, apart from clarifying that the date of filing of a Notice of Contact Information (like Pre-1972 Schedules) is the date when a proper submission, including the prescribed fee, is received in the Copyright Office, the final rule otherwise adopts in full the interim regulations governing Notices of Contact Information. List of Subjects in 37 CFR Part 201 Final Regulations For the reasons set forth above, the interim rule amending 37 CFR part 201, which was published in the Federal Register at 83 FR 52150, on October 16, 2018, is adopted as final with the following changes: 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. Revise paragraph (c)(20). b. Redesignate paragraphs (c)(21) and (c)(22) as paragraphs (c)(22) and (c)(23), respectively. ■ c. Add paragraph (c)(21). The addition and revisions read as follows: ■ ■ ■ § 201.3 Fees for registration, recordation, and related services, special services, and services performed by the Licensing Division. * Copyright, General provisions. * * (c) * * * * * Fees ($) Registration, recordation and related services * * * * * * (20) Schedule of pre-1972 sound recordings, or supplemental schedule of pre-1972 sound recordings (single sound recording) ....... Additional sound recordings (per group of 1 to 100 sound recordings) ................................................................................................... (21) Removal of pre-1972 sound recording from Office’s database of indexed schedules (single sound recording) ............................. * * * * * (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). This section also prescribes the rules for recordation of documents pertaining to the transfer of ownership of pre-1972 sound recordings. (b) * * * (3) For pre-1972 sound recordings of classical music, including opera: (i) The title of the pre-1972 sound recording means, to the extent applicable and known by the rights owner, any and all title(s) of the sound recording and underlying musical composition known to the rights owner, and the composer and opus or catalogue records and provide improved chain of title information). 57 See A2IM, RIAA & SoundExchange Comments at 4 (requesting same). 58 37 CFR 201.36(c); U.S. Copyright Office, Interim Rule Regarding Pre-1972 Sound Recordings, https://www.copyright.gov/rulemaking/pre1972- soundrecordings-schedules/ (last visited, Mar. 1, 2019). 59 A2IM, RIAA & SoundExchange Comments at 9. The Office notes that commenters did not raise concerns with the notification service instituted by the Office regarding recently-indexed Pre-1972 Schedules. 60 17 U.S.C. 1401 (f)(5)(A)(ii)(II)–(III). 3. Amend § 201.35 as follows: a. Revise paragraph (a). b. Add paragraph (b)(3). c. Revise paragraph (c). d. Redesignate paragraphs (d), (e), (f), (g), (h), and (i) as paragraphs (f), (g), (h), (i), (j), and (k), respectively. ■ e. Add paragraphs (d) and (e). ■ f. Revise newly designated paragraphs (f) and (h). ■ g. Add paragraph (l). The additions and revisions read as follows: ■ ■ ■ ■ ■ § 201.35 Schedules of Pre-1972 Sound Recordings; Recordation of Transfers and Other Documents Pertaining to Pre-1972 Sound Recordings. VerDate Sep<11>2014 16:22 Mar 21, 2019 Jkt 247001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 * * 75 10 75 * number(s) of the underlying musical composition; and (ii) The featured artist(s) of the pre1972 sound recording means, to the extent applicable and known by the rights owner, the featured soloist(s), featured ensemble(s), featured conductor, and any other featured performer(s). * * * * * (c) Form and submission. A rights owner seeking to comply with 17 U.S.C. 1401(f)(5)(A) (or her authorized agent) must submit a schedule listing the owner’s pre-1972 sound recordings, or amend such a schedule, using an appropriate form provided by the Copyright Office on its website and following the instructions for completion and submission provided on 61 Id. at 1401(f)(5)(B)(ii). of the date of this notice, only one Notice of Contact Information has been filed with the Office. U.S. Copyright Office, Directory of Notices, https://www.copyright.gov/music-modernization/ pre1972-soundrecordings/notices-contactinformation.html. 62 As E:\FR\FM\22MRR1.SGM 22MRR1 Federal Register / Vol. 84, No. 56 / Friday, March 22, 2019 / Rules and Regulations the Office’s website or the form itself. The Office may reject any submission that fails to comply with these requirements. (d) Amendment or supplementation. A rights owner (or her authorized agent) may amend or supplement information regarding a pre-1972 sound recording included in a schedule filed under paragraph (c) of this section by or on behalf of the same rights owner. Information may be corrected if it was incorrect at the time the pre-1972 schedule was submitted to the Office, or supplemented to include information that was omitted at the time the schedule was submitted to the Office. For each recording included in a schedule filed under this paragraph, where the information specified in paragraph (f)(1) of this section does not change from the previously-filed schedule, the date the previously-filed schedule was indexed into the Office’s public records remains operative for purposes of 17 U.S.C. 1401(f)(5)(A)(i)(II). (e) Removal of record. A rights owner (or her authorized agent) may remove information regarding a pre-1972 sound recording from the Office’s database of schedules if the sound recording was included in a schedule filed under paragraph (c) of this section by or on behalf of the same rights owner, 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. Removal may be made if there was a substantive defect in the pre-1972 schedule regarding the specific sound recording at the time the schedule was submitted to the Office, or, upon a showing of good cause, at the discretion of the Copyright Office. Once a pre-1972 sound recording has been removed from the Office’s database of schedules of pre-1972 sound recordings, the sound recording is no longer considered indexed into the Office’s records. (f) Content. A schedule of pre-1972 sound recordings filed under paragraphs (c) or (d) of this section shall contain the following: (1) For each sound recording listed, the right’s owner name, sound recording title, and featured artist(s); (2) If known and practicable, for each sound recording listed, the International Standard Recording Code (‘‘ISRC’’); (3) 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, VerDate Sep<11>2014 16:22 Mar 21, 2019 Jkt 247001 information, and belief, and is made in good faith; and (4) 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 the alternate title, alternate artist name(s), album, version, label, or publication date. * * * * * (h) Legal sufficiency of schedules. The Copyright Office does not review schedules submitted under paragraphs (c) or (d) 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. * * * * * (l) Recordation of transfers. The conditions prescribed in § 201.4 of this chapter for recordation of transfers of copyright ownership are applicable to the recordation of documents relating to the transfer of ownership of pre-1972 sound recordings under 17 U.S.C. chapter 14. * * * * * 5. Amend § 201.36 as follows: a. Redesignate paragraph (e) as paragraph (f). ■ b. Add paragraph (e) to read as follows: ■ ■ § 201.36 Notices of contact information for transmitting entities publicly performing pre-1972 sound recordings. * * * * * (e) Filing Date. The date of filing of a notice of contact information pursuant to this section is the date when a proper submission, including the prescribed fee, is received in the Copyright Office. * * * * * Dated: March 11, 2019. Karyn A. Temple, Acting Register of Copyrights and Director of the U.S. Copyright Office. Approved by: Carla D. Hayden, Librarian of Congress. 10685 LIBRARY OF CONGRESS U.S. Copyright Office 37 CFR Parts 201, 203, and 210 [Docket No. 2018–10] Notices of Intention and Statements of Account Under Compulsory License To Make and Distribute Phonorecords of Musical Works U.S. Copyright Office, Library of Congress. ACTION: Final rule. AGENCY: The U.S. Copyright Office is issuing final regulations pursuant to the Musical Works Modernization Act, title I of the Orrin G. Hatch–Bob Goodlatte Music Modernization Act. This rule adopts previously issued interim regulations as final. The interim rule amended the Office’s prior regulations pertaining to the compulsory license to make and distribute phonorecords of musical works so as to conform the prior regulations to the new law, including with respect to the operation of notices of intention and statements of account. In addition to adopting the interim rule as final, this final rule makes further technical changes to update cross-references to regulations that were recently amended by the Copyright Royalty Judges. DATES: Effective March 22, 2019. FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and Associate Register of Copyrights, by email at regans@copyright.gov, Steve Ruwe, Assistant General Counsel, by email at sruwe@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: On October 11, 2018, the president signed into law the Orrin G. Hatch–Bob Goodlatte Music Modernization Act (‘‘MMA’’) which, among other things, substantially modified the compulsory ‘‘mechanical’’ license for making and distributing phonorecords of nondramatic musical works available under 17 U.S.C. 115.1 On December 7, 2018, the Copyright Office published in the Federal Register an interim rule amending the Office’s section 115related regulations to harmonize them with the MMA’s requirements, and to make other minor technical updates.2 The amendments largely concerned statements of account and notices of SUMMARY: [FR Doc. 2019–05549 Filed 3–21–19; 8:45 am] 1 Public BILLING CODE 1410–30–P PO 00000 2 83 Frm 00021 Fmt 4700 Sfmt 4700 Law 115–264, 132 Stat. 3676 (2018). FR 63061 (Dec. 7, 2018). E:\FR\FM\22MRR1.SGM 22MRR1

Agencies

[Federal Register Volume 84, Number 56 (Friday, March 22, 2019)]
[Rules and Regulations]
[Pages 10679-10685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05549]


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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: Final rule.

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SUMMARY: Pursuant to the Classics Protection and Access Act, title II 
of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (``MMA''), 
the U.S. Copyright Office is adopting as final a rule regarding 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. This rule largely finalizes the interim 
rule published on October 16, 2018, with some adjustments adopted in 
response to public comment.

DATES: The effective date of the final rule is April 22, 2019.

FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and 
Associate Register of Copyrights, by email at regans@copyright.gov, or 
Anna Chauvet, Assistant General Counsel, by email at 
achau@copyright.gov. Each can be contacted by telephone by calling 
(202) 707-8350.

SUPPLEMENTARY INFORMATION: 

I. Background

    On October 16, 2018, the Copyright Office issued an interim rule 
with

[[Page 10680]]

request for comments regarding certain filings necessitated by title II 
of the MMA, the Classics Protection and Access Act (the ``Act'').\1\ As 
explained in the interim rule, the 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.
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    \1\ 83 FR 52150 (Oct. 16, 2018).
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    Specifically, to be eligible for these remedies, rights owners must 
typically file schedules listing their Pre-1972 Sound Recordings 
(``Pre-1972 Schedules'') with the Copyright Office, which are then 
indexed into the Office's public records.\2\ The remedies are only 
available for unauthorized uses of a sound recording that have occurred 
more than 90 days after indexing.\3\ 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.'' \4\ The filing 
requirement ``is designed to operate in place of a formal registration 
requirement that normally applies to claims involving statutory 
damages.'' \5\ 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.\6\ 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.\7\ 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.\8\
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    \2\ 17 U.S.C. 1401(f)(5)(A)(i)(I)-(II).
    \3\ Id. at 1401(f)(5)(A)(i)(II).
    \4\ Id. at 1401(f)(5)(A)(i)(I).
    \5\ H.R. Rep. No. 115-651, at 16 (2018); see S. Rep. No. 115-
339, at 18 (2018).
    \6\ 17 U.S.C. 1401(c)(1)(A)(i). The Copyright Office has issued 
a separate notice of proposed rulemaking regarding the exception for 
noncommercial uses. 84 FR 1661 (Feb. 5, 2019).
    \7\ Id. at 1401(c)(1)(A).
    \8\ Id. at 1401(f)(5)(A)(ii)(II)-(III).
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    Under the Act, rights owners must also 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.\9\ 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 directly 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.\10\ For any eligible transmitting entities that do 
not file contact information by April 9, 2019, rights owners may seek 
statutory damages and/or attorneys' fees resulting from unauthorized 
uses by those entities after filing Pre-1972 Schedules as described 
above.\11\
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    \9\ Id. at 1401(f)(5)(B)(i)-(ii).
    \10\ Id. at 1401(f)(5)(B)(iii). A transmitting entity will be 
liable only for unauthorized uses occurring 90 days after receipt of 
the notice. See id.
    \11\ H.R. Rep. No. 115-651, at 16 (2018); see S. Rep. No. 115-
339, at 19 (2018).
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    The interim rule established regulations governing each of these 
new filing mechanisms: The filing of Pre-1972 Schedules by rights 
owners, the filing of contact information by entities publicly 
performing these sound recordings by means of digital audio 
transmission, and specifying how individuals may request timely 
notification of the filing of Pre-1972 Schedules with the Office.\12\ 
In response to its request for public comment, the Office received one 
joint comment from the American Association of Independent Music 
(``A2IM''), Recording Industry Association of America, Inc. (``RIAA''), 
and SoundExchange, Inc.\13\ Having reviewed and carefully considered 
this comment, the Office is now adopting the interim rule as final, 
with a few adjustments as described below.
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    \12\ 83 FR 52150, 52153-54 (Oct. 16, 2018).
    \13\ The comments submitted in response to the interim rule can 
be found on the Copyright Office's website at https://www.copyright.gov/rulemaking/pre1972-soundrecordings-schedules/.
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II. Final Rule

A. Pre-1972 Schedules

1. Content of Pre-1972 Schedules
    Under the interim rule, rights owners desiring to file Pre-1972 
Schedules with the Office must use a form provided on the Office's 
website,\14\ which is an Excel spreadsheet template. This format allows 
the Office to timely ingest the Pre-1972 Schedules and index them into 
an online searchable database available to prospective users, including 
persons who may otherwise wish to make noncommercial uses of these 
works, and the general public.\15\
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    \14\ 37 CFR 201.35(c).
    \15\ The Office received no comments regarding the Excel 
spreadsheet format or considering a Pre-1972 Schedule to be 
``indexed'' once it is made publicly available through the Office's 
online database of Pre-1972 Schedules. See 83 FR at 52151. The 
database of Pre-1972 Schedules is available on the Office's website 
at https://copyright.gov/music-modernization/pre1972-soundrecordings/search-soundrecordings.html.
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    Currently, for each sound recording, the Pre-1972 Schedule must 
include the rights owner's name, sound recording title, and featured 
artist.\16\ Rights owners may also include additional optional 
information pursuant to the instructions on the form and the Office's 
website, namely, album title information, alternate sound recording 
title(s), publication date, label, and rights owner's contact 
information.\17\ In their joint comments, A2IM, RIAA, and SoundExchange 
request that the following fields be added to the Office's Pre-1972 
Schedule form: International Standard Recording Code (``ISRC''), sound 
recording version, and alternate artist name.\18\ They also ask the 
Office to group the three required fields together from left to right 
on the form, followed by the optional fields to the right.\19\
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    \16\ 37 CFR 201.35(d)(1).
    \17\ See id. at 201.35(d)(3).
    \18\ A2IM, RIAA & SoundExchange Comments at 7.
    \19\ Id. at 8.
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    These suggestions have been adopted by the final rule. The Office 
agrees that including the ISRC will help to distinguish between 
different Pre-1972 Sound Recordings by the same artist with the same 
title, including with respect to the new exemption for noncommercial 
uses of Pre-1972 Sound Recordings that are not being commercially 
exploited.\20\ Accordingly, the final rule requires the ISRC to be 
included for each recording listed in a Pre-1972 Schedule, if known by 
the filer and practicable to include. Similarly, the final rule permits 
versions and alternate artist names to be provided on

[[Page 10681]]

an optional basis.\21\ While the final rule otherwise retains the 
required and optional fields from the interim rule, the Office has 
revised its Pre-1972 Schedule form so that the fields for rights 
owner's name, the sound recording title, and the featured artist are 
grouped together from left to right, followed on the right by the ISRC 
and the optional fields.
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    \20\ 17 U.S.C. 1401(c)(1)(A)(i).
    \21\ The version of a Pre-1972 Sound Recording may include, 
among other things, its length of playing time or location of 
performance.
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    As noted by the Office in its rulemaking regarding the 
noncommercial use exception to unauthorized uses of Pre-1972 Sound 
Recordings, classical music sound recordings frequently require more 
information to sufficiently identify the sound recording.\22\ The final 
rule adopts a definition of ``title'' and ``featured artist(s)'' for 
pre-1972 sound recordings of classical music, including opera, as 
recently proposed in the noncommercial use exception rulemaking.\23\ 
Because the Office is proposing that users search the database of Pre-
1972 Schedules using specialized terms for this genre to locate these 
recordings, this rule harmonizes the terms that rights owners are asked 
to list on the schedules. To the extent that the rule adopted through 
the noncommercial use rulemaking adjusts this definition, the Office 
may further reconcile this language.
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    \22\ 84 FR 1661, 1669 (Feb. 5, 2019).
    \23\ Id. at 1676.
---------------------------------------------------------------------------

    Regarding the name of the rights owner, A2IM, RIAA, and 
SoundExchange note that ``there has been considerable consolidation in 
the recorded music business'' and that because many Pre-1972 Sound 
Recordings were originally released on labels no longer in existence, 
the rights to these sound recordings ``are sometimes exercised by a 
label in existence today in its own name on behalf of the original 
owner.'' \24\ They ask that the Office ``borrow'' from the language in 
17 U.S.C. 1401(c)(6)(B)(i) and for each Pre-1972 Sound Recording listed 
in a Pre-1972 Schedule, allow ``a person `authorized to act on behalf 
of the rights owner' '' to be listed instead of the rights owner's 
name.\25\
---------------------------------------------------------------------------

    \24\ A2IM, RIAA & SoundExchange Comments at 9.
    \25\ Id.
---------------------------------------------------------------------------

    Because chapter 14 expressly requires that the Pre-1972 Schedule 
filed with the Office include the ``rights owner of the sound 
recording,'' \26\ the Office declines to make this adjustment. Section 
1401(c)(6)(B)(i), which concerns civil penalties for persons 
fraudulently filing opt-out notices for noncommercial uses, necessarily 
relates to the person filing the opt-out notices, rather than the 
requirement to identify a particular rights owner.\27\ The legislative 
history also indicates that the Office's database should reflect 
``works by copyright owners.'' \28\ The final rule does clarify, 
however, that an authorized agent of a rights owner may submit the 
filing on behalf of the rights owner.
---------------------------------------------------------------------------

    \26\ 17 U.S.C. 1401(f)(5)(A)(i)(I).
    \27\ Id. at 1401(c)(6)(B)(i). The final rule retains the 
requirements that 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.
    \28\ H.R. Rep. No. 115-651 at 16; S. Rep. No. 115-339 at 19.
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    A2IM, RIAA, and SoundExchange also assert that the Office's 
database of Pre-1972 Schedules should allow for ``robust search[ing],'' 
including ``fuzzy searching'' (e.g., search results yield results for 
common misspellings) and ``wildcard searching'' (i.e., allowing a user 
to search on a truncated version of a word with a wildcard character, 
such as an asterisk).\29\ The database of Pre-1972 Schedules already 
allows for wildcard searching by using an asterisk to fill in partial 
words. The Office has updated the search instructions on its database 
web page so users are aware of this search capability. While the 
current technology does not permit ``fuzzy'' searching, that limitation 
is also noted on the web page to guide user expectations. The following 
fields in the Office's database of Pre-1972 Schedules are now 
searchable: Rights owner, sound recording title (which includes 
alternate titles), album, label, featured artist (which includes 
alternate artist name(s)), and ISRC. A user can export and download the 
search results based on those fields into an Excel spreadsheet to view 
(and search) additional data.
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    \29\ A2IM, RIAA & SoundExchange Comments at 8-9.
---------------------------------------------------------------------------

2. Correcting or Supplementing Information Included in Filed Pre-1972 
Schedules
    The interim rule did not create a mechanism for rights owners to 
correct limited mistakes or supplement information regarding sound 
recordings included in Pre-1972 Schedules indexed into the Office's 
public record. Instead, the Office invited public comment on whether 
and how to provide a mechanism for the correction of mistakes or for 
supplementing information in Pre-1972 Schedules, including the 
potential effect on a Schedule's index date and how to keep 
administrative costs low.\30\
---------------------------------------------------------------------------

    \30\ 83 FR at 52152.
---------------------------------------------------------------------------

    In response, A2IM, RIAA, and SoundExchange maintain that the Office 
should allow rights owners (or their authorized agents) to correct 
limited mistakes, as well as supplement information included in 
already-filed Pre-1972 Schedules, without affecting a schedule's index 
date.\31\ They note that limited mistakes may occur where Pre-1972 
Schedules list thousands of sound recordings, and that allowing 
supplementation will benefit users of the Office's database of Pre-1972 
Schedules--``particularly those performing good faith, reasonable 
searches in connection with the potential noncommercial use of a pre-72 
recording'' under section 1401(c)--``because users will be able to 
search a greater number of fields and use a wider array of search 
terms, thus increasing the likelihood of finding a match if one 
exists.'' \32\ They suggest that rights owners should be allowed to 
file Pre-1972 Schedules with the required fields to secure an index 
date, and supplement information for those Pre-1972 Sound Recordings at 
a later date.\33\ They propose having ``a secure web portal'' that 
allows rights owners to supplement information and correct mistakes 
relating to their Pre-1972 Sound Recordings.\34\
---------------------------------------------------------------------------

    \31\ A2IM, RIAA & SoundExchange Comments at 5. Commenters did 
not address the Office's level of review of Pre-1972 Schedules under 
the interim rule, and the final rule retains a provision adopted on 
an interim basis specifying that the Office will not review Pre-1972 
Schedules for legal sufficiency, interpret their content, or screen 
them for errors or discrepancies. 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.
    \32\ Id.
    \33\ Id. at 4-5.
    \34\ Id. at 5-6.
---------------------------------------------------------------------------

    Considering these concerns in light of the purpose of the Pre-1972 
Schedules, which operates ``in place of a formal registration 
requirement'' for rights owners and also must be searched by users 
before claiming the noncommercial use exception for these 
recordings,\35\ the final rule adopts a provision allowing a rights 
owner (or her authorized agent) to correct or amplify information 
regarding a Pre-1972 Sound Recording where that sound recording was 
included in a Pre-1972 Schedule previously filed by or on behalf of 
that same rights owner. The rule will operate in a similar, but not 
identical, manner, to other filings accepted by the Office to correct 
or amplify previous filings, including supplementary registrations.\36\

[[Page 10682]]

Information regarding a Pre-1972 Sound Recording may be corrected if 
the information was incorrect at the time the Pre-1972 Schedule was 
submitted to the Office, or supplemented to include information that 
was omitted at the time the Pre-1972 Schedule was submitted to the 
Office.
---------------------------------------------------------------------------

    \35\ H. Rep. No. 115-651 at 16.
    \36\ See U.S. Copyright Office, About Supplementary 
Registration, https://www.copyright.gov/eco/help-supplementary.html 
(last visited Mar. 4, 2019); U.S. Copyright Office, Compendium of 
U.S. Copyright Office Practices sec. 1802 (3d ed.2017) (``Compendium 
(Third)'') (describing supplementary registration practices). 
Amended filings are also permitted for DMCA agent designations, 
contact information for transmitting entities publicly performing 
pre-1972 sound recordings by means of digital audio transmission, 
statements of account for cable operators, satellite carriers, or 
manufacturers or importers distributing digital audio recording 
devices or media, and notices of digital transmission of sound 
recording. See 37 CFR 201.3(c)(18)-(19), (e)(2), (e)(4) (providing 
filing fees for such amendments).
---------------------------------------------------------------------------

    The rule provides that the operative index date for a given Pre-
1972 Recording will change only in the event that information in one of 
the statutorily required fields (title, featured artist(s), and rights 
owner) is amended or amplified. As noted by A2IM, RIAA, and 
SoundExchange, the index date of a Pre-1972 Schedule is of ``critical 
importance to rights owners, as it starts the running of a 90-day clock 
after which the listed sound recordings become eligible for statutory 
damages and attorneys' fees.'' \37\ To encourage rights owners to 
supplement optional information regarding their Pre-1972 Sound 
Recordings, the final rule permits amending or supplementing 
information for an optional field or ISRC without losing the index date 
for the relevant Pre-1972 Sound Recording. But because the schedules 
serve a notice function for prospective licensees and other users of 
these recordings, the Office concludes that a new index date should 
attach when information in one of the three statutorily required fields 
changes, such that the earlier-filed schedule no longer provides the 
same notice as to those fields.
---------------------------------------------------------------------------

    \37\ A2IM, RIAA & SoundExchange Comments at 4.
---------------------------------------------------------------------------

    To ensure transparency, as currently designed, links to filed Pre-
1972 Schedules and Supplemental Pre-1972 Schedules (showing their 
respective index dates) will be provided through the Office's database 
under the ``More Info'' tab for the relevant Pre-1972 Sound Recording. 
Due to technological constraints in the current database, the ``Index 
Date'' field displayed on the Copyright Office's website for a given 
Pre-1972 Sound Recording will reflect the index date of the latest-
filed schedule (which may not govern eligibility for statutory damages 
if it only amends or supplements information for an optional field). 
Accordingly, users are cautioned to review the ``More Info'' tab or 
download information into an Excel spreadsheet for a given Pre-1972 
Sound Recording to determine whether more than one schedule has been 
filed, which may or may not affect the operative index date.\38\
---------------------------------------------------------------------------

    \38\ The Office has updated the search instructions on its 
database web page to note this limitation and guide user 
expectations.
---------------------------------------------------------------------------

    Rights owners (or their authorized agents) will be required to file 
a Supplemental Schedule of Pre-1972 Sound Recordings using a form and 
instructions specified 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 Supplemental Pre-1972 Schedules and index them 
into the Office's database of Pre-1972 Schedules.\39\ For each Pre-1972 
Sound Recording for which the rights owner desires to correct or 
supplement information, the Supplemental Pre-1972 Schedule must include 
the Copyright Office's unique identifier assigned to that sound 
recording in the Office's database.\40\ Because the data on the 
Supplemental Pre-1972 Schedule will overwrite the preexisting data 
displayed and searchable in the Office's database, for each sound 
recording, the Supplemental Pre-1972 Schedule must include the rights 
owner's name, sound recording title, featured artist(s), and, if known 
and practicable, ISRC (inclusive of any corrections or amendments to 
such information). The Supplemental Pre-1972 Schedule must also include 
all optional information the rights owner would like to provide to the 
Copyright Office (including information already provided to the Office 
on a previously filed Pre-1972 Schedule for that sound recording), 
inclusive of any corrections or amendments to such information.
---------------------------------------------------------------------------

    \39\ A2IM, RIAA & SoundExchange suggest that a secure web portal 
be set up allowing owners to supplement their own schedules and 
correct their own mistakes. See A2IM, RIAA & SoundExchange Comments 
at 5-6. But as they anticipate, current technology precludes this 
option and in fact, severely limits the operational choices 
available to implement a supplementary filing option. Id. As 
requested, the Office will consider adjusting this functionality as 
part of its forthcoming technology upgrades.
    \40\ The unique identifier is used by the Office to identify the 
sound recordings for which information should be updated when the 
Supplement Pre-1972 Schedule is ingested into the database. It can 
be located in Office's database of Pre-1972 Schedules by clicking 
the ``More Info'' button in the line entry for a particular sound 
recording, or by downloading and exporting data for that sound 
recording into an Excel spreadsheet.
---------------------------------------------------------------------------

    Finally, A2IM, RIAA, and SoundExchange request the ability to 
remove errantly listed recordings, without affecting the index date of 
the other recordings included on a Pre-1972 Schedule.\41\ The final 
rule will allow a rights owner (or her authorized agent) to remove a 
Pre-1972 Sound Recording from the Office's database of Pre-1972 
Schedules where the sound recording was included in a Pre-1972 Schedule 
filed by or on behalf of that same rights owner, without affecting the 
index date of the other recordings included on the schedule. A 
recording may be removed if there was a substantive defect in the Pre-
1972 Schedule regarding the Pre-1972 Sound Recording at the time the 
Pre-1972 Schedule was submitted to the Office, or, upon a showing of 
good cause, at the discretion of the Copyright Office. Similar to the 
Office's process for voluntary cancellation of a copyright 
registration,\42\ a rights owner (or her authorized agent) will be 
required to file a Removal Form, using a form and instructions 
specified on the Office's website. As currently envisioned, a Removal 
Form may not include more than one Pre-1972 Sound Recording to be 
deleted, and must include the sound recording title, featured 
artist(s), and the Copyright Office's unique identifier assigned to 
that sound recording in the Office's database. The Office will keep a 
record of Pre-1972 Sound Recordings removed from the Office's database, 
and a timestamp of when each deletion occurs. Once removed, the sound 
recording is no longer considered ``indexed'' for purposes of 
eligibility to recover statutory damages and/or attorneys' fees for the 
unauthorized use of that sound recording, or included in the Office's 
database to preclude a user from taking advantage of the noncommercial 
use exception.\43\ The rights owner (or her agent) would need to file a 
new Pre-1972 Schedule containing the sound recording to become eligible 
to recover statutory damages and/or attorneys' fees, or to preclude a 
user from taking advantage of the noncommercial use exception regarding 
that sound recording.
---------------------------------------------------------------------------

    \41\ A2IM, RIAA & SoundExchange Comments at 5.
    \42\ See Compendium (Third) sec. 1804(E).
    \43\ 17 U.S.C. 1401(f)(5)(A)(i)(I)-(II); id. at 
1401(c)(1)(A)(i).
---------------------------------------------------------------------------

3. Filing Fees
    A2IM, RIAA, and SoundExchange request the ability to pay filing 
fees for Pre-1972 Schedules by credit card, check, money order, or bank 
draft, instead of by deposit account, as instructed on the Office's 
website.\44\ In consideration of such comments, the

[[Page 10683]]

Office will allow filers to pay filing fees for Pre-1972 Schedules, 
Supplemental Pre-1972 Schedules, and Removal Forms using either a 
credit card or a deposit account with the Office. So that schedules may 
be submitted to the Office electronically, a rights owner currently 
submits her Pre-1972 Schedule via email, along with a cover sheet 
providing her deposit account information to pay the filing fee. Under 
the final rule, if a filer wishes to pay using a credit card, instead 
of providing the deposit account information on the cover sheet, she 
should indicate her desire to pay by credit card on the cover sheet. 
The same process will be available for filers wishing to pay using a 
credit card to file Removal Forms. For privacy and security reasons, 
the filer should not provide credit card information on the cover sheet 
or Removal Form. Rather, the Office will call the filer for the credit 
card information. Because the processing of Pre-1972 Schedules, 
Supplemental Pre-1972 Schedules, and Removal Forms will not occur until 
after the Office has obtained credit card information from the filer, 
filers are urged to provide accurate contact information on the cover 
sheet or Removal Form and to respond to the Office in a timely manner.
---------------------------------------------------------------------------

    \44\ A2IM, RIAA & SoundExchange Comments at 9-10; Requirements 
and Instructions for Completing and Submitting Schedules of Pre-1972 
Sound Recordings, U.S. Copyright Office, https://www.copyright.gov/music-modernization/pre1972-soundrecordings/schedulefiling-instructions.html.
---------------------------------------------------------------------------

    Because the Office anticipates that the processing and indexing of 
Supplemental Pre-1972 Schedules will be similar to originating Pre-1972 
Schedules, it is setting the fee for supplemental filings at the same 
amount. Similarly, because the Office anticipates that processing a 
Removal Form will be similar to the processing of a Pre-1972 Schedule 
including a single sound recording, it is setting the fee to file a 
Removal Form at the same amount. In line with its general approach to 
fee-setting, the Office will consider whether adjustment is necessary 
after data regarding these filings are available.
    As a technical change, the final rule also clarifies that the fee 
charged for Pre-1972 Schedules and Supplemental Pre-1972 Schedules is 
per sound recording, not per title, since the Copyright Office is 
encouraging rights owners to list alternate titles of recordings on 
schedules to improve the public record.

C. Recordation of Transfers of Ownership Pertaining to Pre-1972 Sound 
Recordings

    The final rule retains the language of the interim rule providing 
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.\45\ Accordingly, a successor in interest may, but is not 
required, to file a new schedule.
---------------------------------------------------------------------------

    \45\ See A2IM, RIAA & SoundExchange Comments at 2-3 and fn. 1 
(supporting interim rule, noting it parallels the registration 
requirement for copyrighted works, which are effective for purposes 
of eligibility for statutory damages and attorneys' fees as to 
successors in interest).
---------------------------------------------------------------------------

    The Office invited public comment on whether it should record 
transfers of rights ownership and other documents pertaining to a Pre-
1972 Sound Recording, even though they are not transfers of copyright 
ownership or documents pertaining to a copyright under 17 U.S.C. 
205.\46\ A2IM, RIAA, and SoundExchange responded that the Office should 
accept for recordation transfer documents and other documents 
pertaining to Pre-1972 Sound Recordings, contending that accepting such 
voluntarily-submitted information would serve a public notice 
function.\47\
---------------------------------------------------------------------------

    \46\ 83 FR at 52152.
    \47\ A2IM, RIAA & SoundExchange Comments at 2-3.
---------------------------------------------------------------------------

    The Office concludes that it may record transfers of ownership 
pertaining to Pre-1972 Sound Recordings through its established 
recordation processes.\48\ Section 1401(h)(1) provides that certain 
provisions relating to the transfers of copyright ownership set forth 
in sections 201 and 204 (including requirements for execution of 
transfers) of the Copyright Act ``shall apply to a transfer'' by a pre-
1972 rights owner ``to the same extent as with respect to a transfer of 
copyright ownership.'' \49\ In turn, section 205 authorizes the 
Copyright Office to record ``transfer[s] of copyright ownership'' under 
certain conditions, and the effective recordation of these documents 
provides constructive notice of the facts stated in the recorded 
document.\50\ The Office has previously concluded that ``any transfer 
that is valid under section 204 should be recordable under section 
205.'' \51\ The Office concludes that it is prudent and sound for it to 
similarly accept transfers of ownership pertaining to Pre-1972 Sound 
Recordings for voluntary recordation into the Office's public database 
pursuant to the general recordation requirements set forth in 37 CFR 
201.4.\52\ That said, because registration is not available for U.S. 
Pre-1972 Sound Recordings (instead, the Pre-1972 Schedules operate in 
lieu of a registration requirement), it is unclear whether recordation 
can provide the same statutory benefits of constructive notice and 
priority between conflicting transfers under section 205.\53\
---------------------------------------------------------------------------

    \48\ A transfer of ownership ``is an assignment, mortgage, 
exclusive license, or any other conveyance, alienation, or 
hypothecation of a copyright or of any of the exclusive rights 
comprised in a copyright, whether or not it is limited in time or 
place of effect, but not including a nonexclusive license.'' 17 
U.S.C. 101.
    \49\ Id. at 1401(h)(1)(A) (``[S]ubsections (d) and (e) of 
section 201 and section 204 shall apply to a transfer described in 
subsection (l)(2)(B) to the same extent as with respect to a 
transfer of copyright ownership.''); see id. at 1401(l)(2) (Defining 
``rights owner'' in relevant part as ``any person to which a right 
to enforce a violation of this section may be transferred, in whole 
or in part'' under ``subsections (d) and (e) of section 201 and 
section 204). Notably, chapter 14 alternatively defines ``rights 
owner'' as ``the person that has the exclusive right to reproduce a 
sound recording under the laws of any State, as of the day before 
the date of enactment of this section.'' Id. It therefore does not 
incorporate other provisions of chapter 2, such as those pertaining 
to initial ownership, works made for hire, contributions to 
collective works, or a mechanism for termination of transfers and 
licenses granted by the author.
    \50\ Id. at 205.
    \51\ Modernizing Copyright Recordation: Interim Rule, 82 FR 
52213, 52215 (Nov. 13, 2017).
    \52\ The relevant recordation regulation provides: ``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.'' 37 CFR 201.4(g).
    \53\ 17 U.S.C. 205(c)(2) (requiring that ``registration has been 
made for the work'' for constructive notice to attach).
---------------------------------------------------------------------------

    Accordingly, the final rule mimics other Office regulations 
applying the Office's general recordation rules to certain types of 
documents that do not actually pertain to copyrighted works, namely, 
those concerning mask works under chapter 9 and vessel designs under 
chapter 13.\54\ Because chapter 14 does not incorporate sections 203 or 
304(c) or (d), this rule does not permit recordation of notices of 
termination of transfers and licenses pursuant to those sections and 37 
CFR 201.10.
---------------------------------------------------------------------------

    \54\ 37 CFR 211.2 (mask works); id. at 212.6 (vessel designs); 
see Compendium (Third) sec. 1203 (``Mask works are not protected by 
copyright law.''); id. at 1302 (``Vessel design protection is not a 
form of copyright protection.'').
---------------------------------------------------------------------------

    Finally, A2IM, RIAA, and SoundExchange request, if practicable, 
that transfers of rights ownership and other documents be cross-
referenced against an earlier-filed Pre-1972 Schedule to maximize the 
benefit of recordation.\55\ While the Office supports the goal of 
facilitating improved chain-of-title information for these documents, 
as well as recorded documents more generally,\56\ its current 
technology does

[[Page 10684]]

not permit linking recorded documents with its database of Pre-1972 
Schedules. Meanwhile, the Office will provide notice in connection with 
its database of Pre-1972 Schedules that information pertaining to 
subsequent changes in ownership may be found in its public catalog; as 
noted, the Office will also accept additional schedules from 
successors-in-interest.\57\
---------------------------------------------------------------------------

    \55\ A2IM, RIAA & SoundExchange Comments at 3-4.
    \56\ See also 83 FR 52336, 52343 (Oct. 17, 2018) (soliciting 
information on how Copyright Office modernization should expand the 
online public record to connect registration and recordation records 
and provide improved chain of title information).
    \57\ See A2IM, RIAA & SoundExchange Comments at 4 (requesting 
same).
---------------------------------------------------------------------------

D. Notices of Contact Information

    Under the interim rule, transmitting entities may currently file a 
Notice of Contact Information with the Office using a pay.gov form and 
following instructions specified on the Office's website.\58\ A2IM, 
RIAA, and SoundExchange requested that individuals should ``be 
permitted to receive timely notification of such filings by subscribing 
to a weekly email notification service,'' similar to the email 
notification service instituted by the Office regarding recently-
indexed Pre-1972 Schedules.\59\ The MMA, however, specifically requires 
a notification mechanism for indexed Pre-1972 Schedules \60\; there is 
no similar requirement relating to Notices of Contact Information. 
Moreover, because the Office may not accept Notices of Contact 
Information after April 9, 2019,\61\ establishing a notification 
service that would be operational for only a short period would not be 
an efficient use of resources.\62\ The Office's online searchable 
directory currently allows searching by the name of a transmitting 
entity (and any alternate names), which should provide an easy way to 
determine whether a transmitting entity has filed a Notice of Contact 
Information.
---------------------------------------------------------------------------

    \58\ 37 CFR 201.36(c); U.S. Copyright Office, Interim Rule 
Regarding Pre-1972 Sound Recordings, https://www.copyright.gov/rulemaking/pre1972-soundrecordings-schedules/ (last visited, Mar. 1, 
2019).
    \59\ A2IM, RIAA & SoundExchange Comments at 9. The Office notes 
that commenters did not raise concerns with the notification service 
instituted by the Office regarding recently-indexed Pre-1972 
Schedules.
    \60\ 17 U.S.C. 1401 (f)(5)(A)(ii)(II)-(III).
    \61\ Id. at 1401(f)(5)(B)(ii).
    \62\ As of the date of this notice, only one Notice of Contact 
Information has been filed with the Office. U.S. Copyright Office, 
Directory of Notices, https://www.copyright.gov/music-modernization/pre1972-soundrecordings/notices-contact-information.html.
---------------------------------------------------------------------------

    In sum, apart from clarifying that the date of filing of a Notice 
of Contact Information (like Pre-1972 Schedules) is the date when a 
proper submission, including the prescribed fee, is received in the 
Copyright Office, the final rule otherwise adopts in full the interim 
regulations governing Notices of Contact Information.

List of Subjects in 37 CFR Part 201

    Copyright, General provisions.

Final Regulations

    For the reasons set forth above, the interim rule amending 37 CFR 
part 201, which was published in the Federal Register at 83 FR 52150, 
on October 16, 2018, is adopted as final with the following changes:

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. Revise paragraph (c)(20).
0
b. Redesignate paragraphs (c)(21) and (c)(22) as paragraphs (c)(22) and 
(c)(23), respectively.
0
c. Add paragraph (c)(21).
    The addition and revisions 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 ($)
------------------------------------------------------------------------
 
                              * * * * * * *
(20) Schedule of pre-1972 sound recordings, or supplemental           75
 schedule of pre-1972 sound recordings (single sound
 recording).................................................
Additional sound recordings (per group of 1 to 100 sound              10
 recordings)................................................
(21) Removal of pre-1972 sound recording from Office's                75
 database of indexed schedules (single sound recording).....
 
                              * * * * * * *
------------------------------------------------------------------------


0
3. Amend Sec.  201.35 as follows:
0
a. Revise paragraph (a).
0
b. Add paragraph (b)(3).
0
c. Revise paragraph (c).
0
d. Redesignate paragraphs (d), (e), (f), (g), (h), and (i) as 
paragraphs (f), (g), (h), (i), (j), and (k), respectively.
0
e. Add paragraphs (d) and (e).
0
f. Revise newly designated paragraphs (f) and (h).
0
g. Add paragraph (l).
    The additions and revisions read as follows:


Sec.  201.35  Schedules of Pre-1972 Sound Recordings; Recordation of 
Transfers and Other Documents Pertaining to 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). This section also prescribes the rules for 
recordation of documents pertaining to the transfer of ownership of 
pre-1972 sound recordings.
    (b) * * *
    (3) For pre-1972 sound recordings of classical music, including 
opera:
    (i) The title of the pre-1972 sound recording means, to the extent 
applicable and known by the rights owner, any and all title(s) of the 
sound recording and underlying musical composition known to the rights 
owner, and the composer and opus or catalogue number(s) of the 
underlying musical composition; and
    (ii) The featured artist(s) of the pre-1972 sound recording means, 
to the extent applicable and known by the rights owner, the featured 
soloist(s), featured ensemble(s), featured conductor, and any other 
featured performer(s).
* * * * *
    (c) Form and submission. A rights owner seeking to comply with 17 
U.S.C. 1401(f)(5)(A) (or her authorized agent) must submit a schedule 
listing the owner's pre-1972 sound recordings, or amend such a 
schedule, using an appropriate form provided by the Copyright Office on 
its website and following the instructions for completion and 
submission provided on

[[Page 10685]]

the Office's website or the form itself. The Office may reject any 
submission that fails to comply with these requirements.
    (d) Amendment or supplementation. A rights owner (or her authorized 
agent) may amend or supplement information regarding a pre-1972 sound 
recording included in a schedule filed under paragraph (c) of this 
section by or on behalf of the same rights owner. Information may be 
corrected if it was incorrect at the time the pre-1972 schedule was 
submitted to the Office, or supplemented to include information that 
was omitted at the time the schedule was submitted to the Office. For 
each recording included in a schedule filed under this paragraph, where 
the information specified in paragraph (f)(1) of this section does not 
change from the previously-filed schedule, the date the previously-
filed schedule was indexed into the Office's public records remains 
operative for purposes of 17 U.S.C. 1401(f)(5)(A)(i)(II).
    (e) Removal of record. A rights owner (or her authorized agent) may 
remove information regarding a pre-1972 sound recording from the 
Office's database of schedules if the sound recording was included in a 
schedule filed under paragraph (c) of this section by or on behalf of 
the same rights owner, 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. Removal may be made if there was a substantive defect in the 
pre-1972 schedule regarding the specific sound recording at the time 
the schedule was submitted to the Office, or, upon a showing of good 
cause, at the discretion of the Copyright Office. Once a pre-1972 sound 
recording has been removed from the Office's database of schedules of 
pre-1972 sound recordings, the sound recording is no longer considered 
indexed into the Office's records.
    (f) Content. A schedule of pre-1972 sound recordings filed under 
paragraphs (c) or (d) of this section shall contain the following:
    (1) For each sound recording listed, the right's owner name, sound 
recording title, and featured artist(s);
    (2) If known and practicable, for each sound recording listed, the 
International Standard Recording Code (``ISRC'');
    (3) 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; and
    (4) 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 the alternate title, 
alternate artist name(s), album, version, label, or publication date.
* * * * *
    (h) Legal sufficiency of schedules. The Copyright Office does not 
review schedules submitted under paragraphs (c) or (d) 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.
* * * * *
    (l) Recordation of transfers. The conditions prescribed in Sec.  
201.4 of this chapter for recordation of transfers of copyright 
ownership are applicable to the recordation of documents relating to 
the transfer of ownership of pre-1972 sound recordings under 17 U.S.C. 
chapter 14.
* * * * *

0
5. Amend Sec.  201.36 as follows:
0
a. Redesignate paragraph (e) as paragraph (f).
0
b. Add paragraph (e) to read as follows:


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

* * * * *
    (e) Filing Date. The date of filing of a notice of contact 
information pursuant to this section is the date when a proper 
submission, including the prescribed fee, is received in the Copyright 
Office.
* * * * *

    Dated: March 11, 2019.
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. 2019-05549 Filed 3-21-19; 8:45 am]
 BILLING CODE 1410-30-P