Filing of Schedules by Rights Owners and Contact Information by Transmitting Entities Relating to Pre-1972 Sound Recordings, 10679-10685 [2019-05549]
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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
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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
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[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
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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
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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.
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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
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
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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).
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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.
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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,
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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.
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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.
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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
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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
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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.
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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
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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.
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*
*
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
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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,
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16:22 Mar 21, 2019
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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
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Law 115–264, 132 Stat. 3676 (2018).
FR 63061 (Dec. 7, 2018).
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]]>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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\1\ 83 FR 52150 (Oct. 16, 2018).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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/.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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
