Modernizing Recordation of Notices of Termination, 34150-34155 [2020-12038]
Download as PDF
<![CDATA[
34150
Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Proposed Rules
Environmental Review
LIBRARY OF CONGRESS
This proposal will be subject to an
environmental analysis in accordance
with FAA Order 1050.1F,
‘‘Environmental Impacts: Policies and
Procedures’’ prior to any FAA final
regulatory action.
U.S. Copyright Office
Lists of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the
Federal Aviation Administration
proposes to amend 14 CFR part 71 as
follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for part 71
continues to read as follows:
■
Authority: 49 U.S.C. 106(f), 106(g); 40103,
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,
1959–1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of Federal Aviation
Administration Order 7400.11D,
Airspace Designations and Reporting
Points, dated August 8, 2019, and
effective September 15, 2019, is
amended as follows:
■
Paragraph 6005 Class E Airspace Areas
Extending Upward From 700 Feet or More
Above the Surface of the Earth.
*
*
*
ASO AL E5
*
*
Guntersville, AL [Amended]
Guntersville Municipal Airport-Joe Starnes
Field, AL
(Lat. 34°24′22″ N, long. 86°15′39″ W)
That airspace extending upward from 700
feet above the surface within a 7-mile radius
of Guntersville Municipal Airport-Joe Starnes
Field.
lotter on DSK9F5VC42PROD with PROPOSALS
Issued in College Park, Georgia, on May 27,
2020.
Andreese C. Davis,
Manager, Airspace & Procedures Team South,
Eastern Service Center, Air Traffic
Organization.
[FR Doc. 2020–11710 Filed 6–2–20; 8:45 am]
BILLING CODE 4910–13–P
37 CFR Part 201
[Docket No. 2020–10]
Modernizing Recordation of Notices of
Termination
U.S. Copyright Office, Library
of Congress.
ACTION: Notice of Proposed Rulemaking;
Notification of Inquiry.
AGENCY:
The United States Copyright
Office is proposing to amend certain
regulations governing the recordation of
notices of termination. Along with a
parallel rulemaking focused on
modernizing document recordation in
conjunction with development of the
Office’s online recordation system, the
proposed amendments are intended to
improve efficiency in the processing of
such notices and to provide additional
guidance to the public in this area. In
addition, the Office is providing notice
of changes to its examination practices
for certain notices of termination that
pertain to multiple grants, and soliciting
public comment on two additional
subjects of inquiry relating to notices of
termination.
DATES: Written comments must be
received no later than 11:59 p.m.
Eastern Time on July 6, 2020.
ADDRESSES: For reasons of government
efficiency, the Copyright Office is using
the regulations.gov system for the
submission and posting of public
comments in this proceeding. All
comments are therefore to be submitted
electronically through regulations.gov.
Specific instructions for submitting
comments are available on the
Copyright Office website at https://
www.copyright.gov/rulemaking/
recordation-modernization. If electronic
submission of comments is not feasible
due to lack of access to a computer and/
or the internet, please contact the Office
using the contact information below for
special instructions.
FOR FURTHER INFORMATION CONTACT:
Regan A. Smith, General Counsel, by
email at regans@copyright.gov, Kevin R.
Amer, Deputy General Counsel, by
email at kamer@copyright.gov, or
Nicholas R. Bartelt, Attorney-Advisor,
by email at niba@copyright.gov. Each
can be contacted by telephone by calling
(202) 707–8350.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
In 2017, the Office initiated a
rulemaking to modernize its overall
VerDate Sep<11>2014
16:35 Jun 02, 2020
Jkt 250001
PO 00000
Frm 00040
Fmt 4702
Sfmt 4702
recordation process by updating
regulations governing the submission of
documents to the Office for
recordation.1 This regulatory update
was initiated in anticipation of
launching a fully electronic, online
recordation system in the future. That
system is currently under development,
and a limited public pilot was launched
in April 2020.
The Office is issuing this separate
notice of proposed rulemaking
(‘‘NPRM’’) to seek public comment on
proposed updates to its regulations
governing recordation of notices of
termination.2 Implementing these
proposed amendments will update the
regulatory framework for notices of
termination before features permitting
electronic submission of notices are
developed for the online recordation
system. In addition, this NPRM clarifies
Office examination practices relating to
notices of termination that contain
multiple grants. Finally, the Office
invites public comment on two subjects
of inquiry: (1) Whether the Office
should develop an optional form or
template to assist remitters in creating
and serving notices of termination; and
(2) whether the Office should consider
regulatory updates to address concerns
about third-party agents failing to
properly serve and file notices on behalf
of authors.3
A. Current Rules and Practices for
Recording Notices of Termination
In enacting the Copyright Act of 1976,
Congress created a process for authors to
reclaim previously-granted rights in
their works by terminating grants after
a period of years has elapsed. To do so,
authors, or their heirs or duly
authorized agents, must serve a notice of
1 See Modernizing Copyright Recordation, 82 FR
52213 (Nov. 13, 2017).
2 See 37 CFR 201.10.
3 This notice is focused on proposed updates to
Office practices for recording notices of
termination, and is without comment upon
congressional and public interest in other
substantive issues concerning the termination
statutes. See, e.g., Hearing on Mark-up of H.R. 5283
before the H. Comm. on the Judiciary, 115th Cong.
45–46 (2018) (statement of Rep. Zoe Lofgren)
(expressing support for expanding termination
rights to legacy recording artists who contributed to
pre-72 sound recordings); id. at 53 (statement of
Rep. Sheila Jackson-Lee) (same); Moral Rights,
Termination Rights, Resale Royalty, and Copyright
Term: Hearing before the Subcomm. on the Courts,
Intellectual Prop., & the internet of the H. Comm.
on the Judiciary, 113th Cong. 2–4 (2014) (statements
of Reps. Coble, Conyers, & Goodlatte) (discussing
termination issues generally); U.S. Copyright Office,
Analysis of Gap Grants under the Termination
Provisions of Title 17 9 (2010) (‘‘Gap Grant
Analysis’’) (highlighting termination issues raised
by public commenters outside the focus of the gap
grant analysis); Public Knowledge, Making Sense of
the Termination Right: How the System Fails
Artists and How to Fix It (Dec. 2019).
E:\FR\FM\03JNP1.SGM
03JNP1
Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Proposed Rules
termination on the grantee not less than
two or more than ten years before the
effective date of termination stated in
the notice.4 The effective date of
termination is a date selected by the
author within a five-year window that is
set by statute. For grants executed on or
after January 1, 1978, the five-year
window starts either 35 years from the
date of execution or, if the grant covers
the right of publication, 40 years from
the date of execution or 35 years from
the date of publication, whichever is
earlier.5 For grants executed before
January 1, 1978, the five-year window
begins 56 years from the date copyright
was originally secured.6 In addition,
‘‘[a] copy of the notice shall be recorded
in the Copyright Office before the
effective date of termination, as a
condition to its taking effect,’’ and such
‘‘notice shall comply, in form, content,
and manner of service, with
requirements that the Register of
Copyrights shall prescribe by
regulation.’’ 7 More broadly, section 702
of the Act authorizes the Register of
Copyrights to ‘‘establish regulations . . .
for the administration of the functions
and duties made the responsibility of
the Register under [title 17],’’ and
section 705(a) requires the Register to
‘‘ensure that records of . . .
recordations . . . are maintained, and
that indexes of such records are
prepared.’’ 8
In establishing regulations under this
authority, the Office has long been of
the view that the ‘‘required contents of
the notice must not become unduly
burdensome to grantors, authors, and
their successors,’’ who may lack
knowledge of certain information, such
as the applicable dates.9 Consistent with
that understanding, and to the extent
permitted by the statute, the Office
4 See
17 U.S.C. 203(a)(4)(A), 304(c)(4)(A).
id. at 203(a)(3).
6 See id. at 304(c)(3).
7 Id. at 203(a)(4), 304(c)(4). These provisions also
apply to section 304(d)(1), another termination
provision, which incorporates section 304(c)(4) by
reference. Id. at 304(d)(1).
8 Id. at 702, 705(a).
9 Termination of Transfers and Licenses Covering
Extended Renewal Term, 42 FR 45916, 45918 (Sept.
13, 1977) (‘‘[W]e remain convinced that the
required contents of the notice must not become
unduly burdensome to grantors, authors, or their
successors, and must recognize that entirely
legitimate reasons may exist for gaps in their
knowledge or certainty.’’); id. at 45917 (‘‘The
preparation of notice[s] of termination will be
occurring at a time far removed from the original
creation and publication of the work and, in many
cases, will involve successors of original authors
having little, if any, knowledge of the details of
original creation or publication.’’); id. at 45918
(recognizing that ‘‘it will commonly be the case that
the terminating author, or the terminating renewal
claimant . . . will not have a copy of the grant or
ready access to a copy’’).
lotter on DSK9F5VC42PROD with PROPOSALS
5 See
VerDate Sep<11>2014
16:35 Jun 02, 2020
Jkt 250001
generally seeks to avoid outright
rejection of termination notices
submitted for recordation on grounds of
technical noncompliance with Office
regulations. Instead, where possible, the
Office will correspond with remitters to
assist them in bringing deficient
submissions into compliance with the
relevant regulations—for example, by
supplying required information omitted
from the original submission. This
general policy in favor of recordation is
particularly appropriate in light of the
asymmetrical consequences associated
with the determination of whether or
not to record a notice.10 As the Office’s
regulations state, recordation is ‘‘not a
determination by the Office of the
notice’s validity or legal effect’’ and ‘‘is
without prejudice to any party claiming
that the legal or formal requirements for
effectuating termination (including the
requirements pertaining to service and
recordation of the notice of termination)
have not been met.’’ 11 By contrast, a
refusal to record can ‘‘permanently
invalidate a notice of termination that is
otherwise legally sound,’’ and thereby
deprive the copyright owner of the
ability to reclaim rights in her work.12
II. The Proposed Rule
After a review of the current
regulatory framework in light of overall
modernization efforts, the Office
proposes several amendments and
clarifications to its regulations
governing notices of termination. The
Office intends for these changes to
facilitate recordation and compliance
with regulatory requirements.
A. Timeliness
First, the Office proposes an
amendment to restore its discretion to
record certain untimely notices if
equitable circumstances warrant. Until
recently, the relevant language said that
the Office ‘‘reserves the right to refuse
recordation of a notice of termination as
such if, in the judgment of the Copyright
Office, such notice is untimely.’’ 13 The
current interim rule, promulgated in
2017 as part of the parallel rulemaking
on modernizing document recordation,
10 The
Office previously observed that adopting a
permissive recordation policy is consistent with the
statutory purpose of allowing authors to exercise
their termination rights. See Gap Grant Analysis at
3 (citing H.R. Rep. No. 94–1476, at 124 (1976); S.
Rep. No. 94–473, at 108 (1975)).
11 37 CFR 201.10(f)(4); see Ray Charles Found. v.
Robinson, 795 F.3d 1109, 1117–18 (9th Cir. 2015)
(noting that validity and effect of notices can only
be determined by a court of law, not the Copyright
Office).
12 Gap Grant Analysis at ii n.3.
13 See Recordation of Notices of Termination of
Transfers and Licenses; Clarifications, 74 FR 12554,
12556 (Mar. 25, 2009).
PO 00000
Frm 00041
Fmt 4702
Sfmt 4702
34151
changed the provision to state that the
Office ‘‘will’’ refuse such notices.14 The
notice announcing the rule did not
discuss the basis for that change or state
whether it was intended to narrow the
Office’s discretion in this area. In any
event, the Office now proposes
replacing ‘‘will’’ with ‘‘may’’ to account
for the possibility that recordation may
be warranted in certain cases even
where the information available to the
Office indicates that the notice is
untimely. For example, if the effective
date of termination appears to be
outside the five-year termination
window based on the date of execution
provided, but there is reason to believe
that the work may have been created at
a later date such that the notice could
in fact be timely based on the Office’s
treatment of ‘‘gap grants,’’ 15 it may be
appropriate to record the notice to allow
the relevant facts to be determined by a
court if necessary. The Office believes it
is appropriate to amend the regulatory
language to ensure it has the flexibility
to excuse untimeliness in cases where
doing so would serve the interests of
justice and be otherwise equitable, to
the extent permitted by the statute.16
Second, the Office proposes a
technical change to clarify an example
provided in the regulations to illustrate
when a notice may be untimely. The
current regulations provide several
examples of situations when a ‘‘notice
will be considered untimely.’’ The
interim rule included these examples to
illustrate the types of errors that could
lead to the Office refusing to record a
notice on timeliness grounds. The
examples were not, however, intended
to outline the full range of situations
where a notice would be untimely. One
example of untimeliness added by the
2017 interim rule is where ‘‘the date of
recordation is after the effective date of
termination.’’ 17 This language may
cause confusion because the relevant
statutory provisions—sections
203(a)(4)(A) and 304(c)(4)(A)—provide
that ‘‘[a] copy of the notice shall be
recorded in the Copyright Office before
the effective date of termination, as a
14 82
FR at 52220.
37 CFR 201.10(f)(1)(ii)(C) (permitting
termination under section 203 of a pre-1978
agreement to grant a work created after January 1,
1978 ‘‘if [the notice] recites, as the date of
execution, the date on which the work was
created’’).
16 By contrast, in cases where a notice of
termination is received by the Office on or after the
effective date of termination, the statute itself
appears to prohibit the Office from recording the
notice as a notice of termination. See 17 U.S.C.
203(a)(4)(A) (‘‘A copy of the notice shall be
recorded in the Copyright Office before the effective
date of termination, as a condition to its taking
effect.’’), 304(c)(4)(A) (same).
17 37 CFR 201.10(f)(1)(ii)(A) (emphasis added).
15 See
E:\FR\FM\03JNP1.SGM
03JNP1
34152
Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Proposed Rules
condition to its taking effect.’’ 18 To
clarify that submitting a notice for
recordation on the effective date of
termination would also be untimely
under the statutory provisions, the
Office proposes amending the example
to provide that a date of recordation ‘‘on
or’’ after the effective date of
termination will be considered
untimely.
lotter on DSK9F5VC42PROD with PROPOSALS
B. Harmless Errors
The Office’s regulations include a
‘‘harmless errors’’ exception providing
that defects in a notice that ‘‘do not
materially affect the adequacy of the
information required to serve the
purposes of 17 U.S.C. 203, 304(c), or
304(d), whichever applies, shall not
render the notice invalid.’’ 19 Case law
indicates that this provision may apply
to any ‘‘immaterial’’ error in a notice,
such as providing incorrect addresses or
failing to include specific identifying
information about each work.20 The
touchstone of whether an error is
‘‘harmless’’ is its ‘‘materiality,’’ which
‘‘[is] to be viewed through the prism of
the information needed to adequately
advance the purpose sought by the
statutory termination provisions
themselves’’—that is, balancing
protection of authors’ opportunity to
reclaim their rights against grantees’
interest in receiving sufficient notice of
how their rights will be affected.21
In addition to this general ‘‘harmless
errors’’ provision, the regulations list
several specific types of errors that are
considered harmless under the rule,
provided ‘‘the errors were made in good
faith and without any intention to
deceive, mislead, or conceal relevant
information.’’ 22 These include errors in
18 17 U.S.C. 203(a)(4)(A), 304(c)(4)(A) (emphasis
added).
19 37 CFR 201.10(e)(1).
20 See Horror Inc. v. Miller, 335 F. Supp. 3d 273,
319–20 (D. Conn. 2018) (finding incorrect addresses
in a notice to be harmless error and interpreting the
requirement to ‘‘reasonably identify’’ the work
broadly); Siegel v. Warner Bros. Entm’t, 658 F.
Supp. 2d 1036, 1091–95 (C.D. Cal. 2009) (finding
failure to include information about two weeks of
comics was harmless error given the totality of
information provided in the notice, including a
‘‘catch-all’’ clause).
21 Siegel v. Warner Bros. Entm’t, 690 F. Supp. 2d
1048, 1052 (‘‘Siegel II’’); see also Mtume v. Sony
Music Entm’t, 18 Civ. 6037(ER), 2019 WL 4805925,
at *4 (S.D.N.Y. Sept. 30, 2019) (citing Siegel II and
explaining the competing objectives of the statutory
termination provisions).
22 37 CFR 201.10(e)(2) (‘‘Without prejudice to the
general rule provided by paragraph (e)(1) of this
section, errors made in giving the date or
registration number referred to in paragraph
(b)(1)(iii), (b)(2)(iii), or (b)(2)(iv) of this section, or
in complying with the provisions of paragraph
(b)(1)(vii) or (b)(2)(vii) of this section, or in
describing the precise relationships under
paragraph (c)(2) or (c)(3) of this section, shall not
affect the validity of the notice if the errors were
VerDate Sep<11>2014
17:27 Jun 02, 2020
Jkt 250001
identifying the date of registration or
registration number, listing the names of
the author’s heirs, or describing the
precise relationships between the author
and his or her heirs.23 The regulations
also specifically encompass errors in
‘‘[t]he date of execution of the grant
being terminated and, if the grant
covered the right of publication of a
work, the date of publication of the
work under the grant.’’ 24
In contrast, failing to provide
complete date and manner of service
information (the ‘‘statement of service’’)
is a violation of Office regulations that
is not currently subject to the harmless
error rule. The current regulations
mandate that a notice submitted for
recordation ‘‘must be accompanied by a
statement setting forth the date on
which the notice was served and the
manner of service, unless such
information is contained in the
notice.’’ 25 This requirement is a
procedural rule established by the
Office for recordation, rather than
statutorily-mandated component of a
valid notice. It is not subject to the
harmless error rule because that rule
only applies to ‘‘errors in a notice,’’
including omissions of information from
the notice,26 and the statement of
service is not necessarily contained in
the actual notice, as it can be provided
separately.
made in good faith and without any intention to
deceive, mislead, or conceal relevant
information.’’); see Johansen v. Sony Music Entm’t
Inc., 19 Civ. 1094, 2020 WL 1529442, at *7 (Mar.
31, 2020) (noting that ‘‘the examples recited in
§ 201.10(e)(2) were not meant to define or otherwise
set strict parameters on the circumstances where
the general harmless error rule in § 201.10(e)(1) is
applicable’’).
23 37 CFR 201.10(e)(2).
24 See id. at 201.10(b)(2)(iii), (e)(2); Mtume, 2019
WL 4805925, at *4 (finding that although the date
of execution provided in the notice ‘‘cannot be the
date of creation for at least one of the works,’’ ‘‘this
date—to the extent it is incorrect—may be harmless
error’’).
25 37 CFR 201.10(f)(1)(i)(B).
26 See id. at 201.10(e)(1). Recently, courts have
held that the omission of certain information from
the notice may be harmless in particular
circumstances. See Waite v. UMG Recordings, Inc.,
19–cv–1091, 2020 WL 1530794, at *7–8 (Mar. 31,
2020) (finding omission of the dates of execution for
the relevant grants and listing incorrect dates for the
agreements governing the grants to be harmless
errors under the general provision because
‘‘defendant has sufficient notice as to which grants
and works plaintiffs seek to terminate’’ and
‘‘possesses the relevant agreements and can discern
the relevant dates’’); Johansen, 2020 WL 1529442,
at * 6–7 (concluding that the general harmless error
provision encompasses omission of specific dates of
execution where ‘‘notices clearly identified the
publication dates of the sound recordings at issue,
as well as their authors, their titles, their copyright
registration numbers and their effective dates of
termination,’’ such that the ‘‘notices provide
[grantee] with ample information to identify the
grants’’).
PO 00000
Frm 00042
Fmt 4702
Sfmt 4702
The Office believes that errors in
complying with its regulations should
be evaluated by the same harmless error
standard as errors in complying with the
statutory requirements: So long as an
error does not materially affect the
adequacy of the notice, it should not
render the notice invalid.27 The Office
therefore proposes broadening the
harmless error rule beyond errors in a
notice to also apply to remitters’
compliance with any Officepromulgated recordation requirement
for notices. This revision would permit
the Office to treat missing or incomplete
service information the same as errors in
a notice—that is, as harmless error when
a remitter does not know or is unable to
reasonably determine this information.
C. Manner of Service
The current regulations provide that
service of a notice of termination upon
a grantee may be accomplished by
personal service or by first class mail.28
The Office proposes amending its
regulations to clarify that acceptable
manners of service also include delivery
by courier services (e.g., FedEx, UPS,
DHL). In addition, the Office proposes
permitting service by email, provided
the recipient expressly consents to
service in this manner.29 These
proposed amendments recognize
modern, alternative methods of service
to increase efficiencies for both
remitters and grantees. The Office
recently took similar action to allow
remitters to submit notices of
termination for recordation by the Office
‘‘electronically in the form and manner
prescribed in instructions on the
Office’s website.’’ 30
27 In fact, the initial harmless error provision was
adopted after public commenters proposed it as a
guardrail against ‘‘fatal slips’’ in complying with the
Office’s regulations governing notices. See 42 FR at
45919 (citing comments submitted by the Authors
League of Am., Inc. and Joint Reply Comments from
the Authors League, National Music Publishers’
Assoc., Inc., Am. Guild of Authors and Composers,
Columbia Pictures Indus., Inc., MGM, Inc.,
Paramount Pictures Corp., Twentieth Century-Fox
Film Corp., United Artists Corp., and Warner Bros.
Inc.).
28 37 CFR 201.10(d)(1), (f)(1)(i)(B). These methods
of service remain unchanged since the Office first
adopted regulations governing notices of
termination. See 42 FR at 45920.
29 The Office has adopted a similar approach in
service of notice of intention to obtain a compulsory
license for making and distributing phonorecords
under 17 U.S.C. 115. See 37 CFR 201.18(a)(7), (f)(6)
(permitting service by electronic transmission in
certain circumstances, including where a party has
consented to accept service by email); see also
Mechanical and Digital Phonorecord Delivery
Compulsory License, 79 FR 56190, 56197 (Sept. 18,
2014).
30 37 CFR 201.1(c)(2).
E:\FR\FM\03JNP1.SGM
03JNP1
Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Proposed Rules
D. Identification of a Work
Under the current regulations,
remitters must clearly identify the title
of each work to which the notice of
termination applies. Providing a
registration number is not required, but
is encouraged ‘‘if possible and
practicable.’’ 31 To further encourage
remitters to identify works in notices by
registration number, the Office proposes
amending the regulations to permit
identification of a work by providing: (a)
The title, (b) the original copyright
registration number assigned by the
Office, or (c) both pieces of information.
This approach promotes specificity
when identifying works while still
allowing remitters flexibility in method
of identification. It is also the standard
for how works may be identified in
documents that are recorded under
section 205 of the Act.32 It should be
noted, however, that if a work is
identified only by registration number
in a notice and there is an error in the
number, the error may materially affect
the adequacy of the information, which,
in turn, may affect the validity of the
notice. Accordingly, the Office
recommends providing both the title
and registration number where possible.
E. Date of Recordation
Current regulations set the date of
recordation for a notice of termination
as the date when ‘‘all of the elements of
required for recordation, including the
prescribed fee and, if required, the
statement of service’’ are received by the
Office.33 This rule harmonizes with the
Office’s method of determining the date
of recordation for transfers of ownership
and other documents pertaining to
copyright that are recorded under
section 205 of the Act.34 Similarly,
registration applications are assigned an
effective date of registration, which is
set by statute as ‘‘day on which an
application, deposit, and fee . . . have
all been received by the Office.’’ 35
31 Id.
at 201.10(b)(1)(iii), (2)(iv).
17 U.S.C. 205(c) (constructive notice of a
recorded document attaches if, after being indexed
by the Office, ‘‘the document, or material attached
to it, . . . would be revealed by a reasonable search
under the title or registration number of the work’’);
Copyright Office Fees, 85 FR 9374, 9383–84 (Feb.
19, 2020) (adjusting fee structure for recordation of
documents, including notices of termination, to
calculate one ‘‘work’’ as the title, registration
number, or both).
33 37 CFR 201.10(f)(3).
34 Id. at 201.4(a) (‘‘The date of recordation is
when all the elements required for recordation,
including a proper document, fee, and any
additional required information, are received in the
Copyright Office.’’). As originally implemented, the
Office only required the ‘‘proper document’’ and fee
be received by the Office. See 43 FR 771, 772 (Jan.
4, 1978).
35 17 U.S.C. 410(d).
lotter on DSK9F5VC42PROD with PROPOSALS
32 See
VerDate Sep<11>2014
16:35 Jun 02, 2020
Jkt 250001
Although the rule linking the date of
recordation to the receipt of a complete
submission has remained essentially
unchanged since implemented in 1977,
the Office has taken a fresh look at this
requirement and determined that it
should be relaxed to mitigate the harsh
consequences that can result where a
submission is missing certain required
elements. While many types of clerical
filing errors in notice submissions can
be corrected without prejudice to the
grantee, a change to the date of
recordation resulting from the
correction can have severe
repercussions for the grantor. For
example, if a grantor properly serves a
notice on the grantee but fails to include
a statement of service in the recordation
submission to the Office, the grantor
could correct this oversight by later
submitting the statement of service.
Under current regulations, however, the
date of recordation would become the
date the statement of service was
received, not the date the Office first
received the notice. Where the effective
date of termination has already passed
before the submission is corrected, the
notice would be untimely because the
statute requires that notices be recorded
before the effective date of
termination.36 In that circumstance,
assuming at least two years remained in
the termination window, the grantor
would have to amend the notice by
selecting an effective date of termination
at least two years later, and serve and
file that amended notice. But if the
untimely notice was rejected by the
Office within the final two years of the
five-year window, the grantor would be
unable to choose a different valid
effective date and would lose the
opportunity to terminate altogether.
Given these potentially severe
consequences, current Office practice
permits remitters to address certain nonmaterial errors or omissions in notices
submitted for recordation by providing
information via correspondence with
the Office, rather than requiring
remitters to amend, re-serve, and re-file
the notice.37 For example, a notice
terminating a grant under section 203
may indicate that the grant included the
right of publication, but omit the date of
publication, in which case the Office
would correspond to obtain that date to
determine the applicable five-year
window. In such instances, Office
36 See id. at 203(a)(4)(A), 304(c)(4)(A). Similarly,
under the current rule, a remitter could submit an
otherwise timely and materially adequate notice for
recordation, but with the improper fee. If not
corrected until after the effective date of
termination, the submission would be untimely.
37 Cf. 37 CFR 201.10(e) (providing exceptions for
harmless errors).
PO 00000
Frm 00043
Fmt 4702
Sfmt 4702
34153
practice has been to allow remitters to
retain their original date of recordation
after the Office receives sufficient
information to determine that the notice
may be recorded as originally
submitted. The Office believes that this
practice should be extended to other
non-material errors, including
specifically to situations in which the
remitter has failed to provide the
prescribed fee or the statement of
service.38 The Office therefore proposes
amending the regulations to set the date
of recordation as the date when the
notice is received by the Office.
Although this approach would differ
from the method of assigning a date of
recordation for other types of
documents, the Office believes this
distinction is appropriate in light of key
differences between the recordation of
notices of termination and the
recordation of other documents
pertaining to copyright. In the context of
termination notices, it is a statutory
requirement that grantees receive actual
notice before a copy of the notice is
recorded with the Office.39 Because of
this, the availability of the notice in the
Office’s public records is unnecessary to
ensure that a grantee has adequate
notice of the author’s intention to
terminate. Indeed, the notice could be
recorded years after the grantee was
served so long as it is received by the
Office before the effective date of
termination. In contrast, there is no
statutory requirement that parties
affected by transfers of ownership or
other documents recorded under section
205 receive actual notice.40 Therefore,
for those types of documents, the
constructive notice that is imputed from
the date of recordation by the Office
may have greater significance for
affected parties than is the case in the
termination context.41
III. Examination Practices for Notices
Relating to Multiple Grants
In recent years, the Office began
receiving notices of termination relating
to multiple grants, that is, notices that
seek to terminate: (a) More than one
grant between the same parties (e.g., one
grantor seeks to terminate multiple,
separate grants to the same grantee(s)),
or (b) more than one grant relating to the
same work(s) (e.g., one grantor seeks to
38 The proposed change that date of recordation
no longer be conditioned upon receipt of the
prescribed fee is subject to change if the Office
experiences administrative hardship from remitters
withholding fees until requested or otherwise
delaying payment in a way that affects the Office’s
receivables.
39 See 17 U.S.C. 203(a)(4)(A), 304(c)(4)(A).
40 See id. at 205.
41 See id. at 205(c).
E:\FR\FM\03JNP1.SGM
03JNP1
34154
Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Proposed Rules
lotter on DSK9F5VC42PROD with PROPOSALS
terminate separate grants to multiple
grantees for the same work(s)). The
Office has not previously provided
guidance about recording notices that
pertain to multiple grants. And in some
cases, the Office has declined to record
such notices, requiring that notices
pertain to a single grant. To promote
consistency and dispel confusion about
whether remitters may record notices
pertaining to multiple grants, the Office
takes this opportunity to clarify its
practices.
After taking a fresh look at the issue,
the Office concludes that there is
nothing in the statute or current
regulations barring notices covering
multiple grants.42 Accordingly, notices
with multiple grants will generally be
recorded as a matter of convenience for
authors seeking to reclaim their rights.
The Office, however, will not record
notices involving multiple grants where
there is no overlap of either a grantee or
a work across the various grants. In
other words, a grantor may not use one
notice to terminate multiple grants
where each grant involves a different
work and different grantee(s). Notices
structured in this way would likely be
administratively burdensome for the
Office to examine and process because
they would effectively merge multiple
notices into one document. The current
fee charged for recording a notice of
termination is based upon the staff
resources required to examine and
index a single notice. While
examination of a notice relating to
multiple grants may require greater
resources than examination of a single
grant, the Office expects the additional
burden to typically be limited where the
grants contain commonalities either as
to the grantees or the works. By contrast,
recording notices containing wholly
unrelated multiple grants would likely
demand more significant additional
resources and, consequently, decrease
overall processing efficiency.
Accordingly, at this time, no
additional fee will be charged for
processing notices relating to multiple
grants. The Office intends to track the
volume of notices with multiple grants
that are submitted, how many grants are
included per notice, and how much
longer these notices take to process, to
determine whether processing time has
increased due to the need to examine
42 Notably, section 203(b) states that ‘‘[u]pon the
effective date of termination, all rights under this
title that were covered by the terminated grants
revert . . . .’’ The references to the ‘‘effective date’’
in the singular and ‘‘grants’’ in the plural could be
read to implicitly anticipate multiple grants in a
single notice. But given that the rest of section 203,
and all of sections 304(c) and (d), refer to a ‘‘grant’’
in the singular, this one pluralization seems far
from definitive.
VerDate Sep<11>2014
16:35 Jun 02, 2020
Jkt 250001
and index each grant in separate
records. Using that information, the
Office can reach an informed decision
about whether or not to adopt any
additional fee for notices involving
multiple grants.
IV. Additional Subjects of Inquiry
In addition to the foregoing proposed
regulatory changes and clarification of
examination practices, the Office
solicits public comment on the
following additional topics related to
notices of termination.
A. Sample Form or Template for Notices
of Termination
The Office currently does not provide
forms for use in preparing and serving
notices of termination.43 Previously, in
a 2002 notice of proposed rulemaking,
the Office sought public comment on
‘‘whether the Office should provide
official forms for notices of termination
of transfers and licenses under sections
203, 304(c) and 304(d), and whether the
use of such forms should be made
mandatory.’’ 44 In the notice, the Office
cited the potential benefits of facilitating
Office processing of notices and
promoting compliance with statutory
and regulatory requirements.45 No
comments were received, and
provisions relating to forms were not
included in the final rule.46
In light of its IT modernization efforts,
the Office again invites public comment
on whether it would be beneficial for
the Office to develop an optional sample
form or other template for notices of
termination, such as an online notice
builder. The Office also invites
comment on any specific features that
should be included in such an option.
These comments will be considered in
future phases of recordation
development and may also be used in
developing updated guidance
documents for the public unconnected
to IT systems, including circulars, the
Compendium of U.S. Copyright Office
Practices, and online instructional
materials.
B. Third-Party Agents
As is true of many types of filings
with the Copyright Office, authors
sometimes entrust third-party agents to
create, serve, and file notices of
termination on their behalf. Although
notices filed by third-party agents are
generally recorded without incident, the
Office understands that, in some
43 See
37 CFR 201.10(a).
of Termination, 67 FR 77951, 77953
(Dec. 20, 2002).
45 Id.
46 Notice of Termination, 68 FR 16958, 16959
(Apr. 8, 2003).
44 Notice
PO 00000
Frm 00044
Fmt 4702
Sfmt 4702
instances, third-party agents have failed
to comply with the statutory and
regulatory requirements for recordation.
If third-party agents do not timely
communicate problems with
recordation of notices to their clients,
authors’ termination rights may be
jeopardized or extinguished altogether,
depending on when these issues occur
and are discovered relative to the fiveyear termination window.
The Office seeks public comment on
whether these concerns could be
addressed through regulatory updates,
and if so, what specific changes should
be considered. In addressing this issue,
commenters should be mindful that the
Office is generally seeking to make
compliance with its regulations and
practices less onerous and more flexible
for remitters, and to increase efficiency
in the recordation process. Commenters
should consider whether imposing
additional requirements to protect
against errors or abuses by third-party
agents is compatible with those goals.
Likewise, commenters may consider the
effect of any proposed change on the
ability of authors to engage agents to
limit the disclosure of personally
identifiable information in the public
record.
IV. Conclusion
In furtherance of the Office’s
modernization efforts, the proposed
amendments will facilitate recordation
of notices of termination by easing
compliance with requirements
established by the Office. The Office
invites public comment on this proposal
and on the subjects of inquiry discussed
above.
List of Subjects in 37 CFR Part 201
Copyright, General provisions.
Proposed Regulations
For the reasons set forth in the
preamble, the Copyright Office proposes
amending 37 CFR part 201 as follows:
PART 201—GENERAL PROVISIONS
1. The authority citation for part 201
continues to read as follows:
■
Authority: 17 U.S.C. 702.
§ 201.10
[Amended]
2. Amend § 201.10 as follows:
■ a. In paragraph (b)(1)(iii):
■ i. Remove ‘‘and, if possible and
practicable, the original copyright
registration number;’’
■ ii. Add ‘‘or the original copyright
registration number, or both, if possible
and practicable,’’ after ‘‘The title’’;
■ b. In paragraph (b)(2)(iv):
■
E:\FR\FM\03JNP1.SGM
03JNP1
Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Proposed Rules
i. Remove ‘‘and, if possible and
practicable, the original copyright
registration number;’’
■ ii. Add ‘‘or the original copyright
registration number’’ after ‘‘the title’’;
■ iii. Add ‘‘, or both, if possible and
practicable,’’ after ‘‘the work’’;
■ c. In paragraph (d), add ‘‘or by
reputable courier service delivered’’
after ‘‘by first class mail sent’’ and add
‘‘, or by means of electronic
transmission (such as email) if the
grantee expressly consents to accept
service in this manner’’ after ‘‘grantee or
successor in title’’.
■ d. In paragraph (e)(1), add ‘‘preparing,
serving, or seeking to record’’ after
‘‘Harmless errors in’’ and add ‘‘or that
do not materially affect, in the Office’s
discretion, the Office’s ability to record
the notice’’ after ‘‘whichever applies,’’;
■ e. In paragraph (e)(2), remove ‘‘or
registration number’’;
■ f. In paragraph (f)(1)(ii)(A), remove
‘‘will’’ from the first sentence and add
in its place ‘‘may’’, remove ‘‘will’’ from
the second sentence and add in its place
‘‘may’’, and add ‘‘on or’’ after ‘‘the date
of recordation is’’; and
■ g. In paragraph (f)(3), remove ‘‘all of
the elements required for recordation,
including the prescribed fee and, if
required, the statement of service, have
been’’ and add in its place ‘‘the notice
of termination is’’.
■
Dated: June 1, 2020.
Regan A. Smith,
General Counsel and Associate Register of
Copyrights.
[FR Doc. 2020–12038 Filed 6–2–20; 8:45 am]
BILLING CODE 1410–30–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 19, 42, and 52
[FAR Case 2019–004, Docket No. FAR–
2019–0030, Sequence No. 1]
RIN 9000–AN87
lotter on DSK9F5VC42PROD with PROPOSALS
Federal Acquisition Regulation: Good
Faith in Small Business
Subcontracting
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Proposed rule.
AGENCY:
DoD, GSA, and NASA are
proposing to amend the Federal
SUMMARY:
VerDate Sep<11>2014
16:35 Jun 02, 2020
Jkt 250001
Acquisition Regulation (FAR) to
implement a section of the National
Defense Authorization Act for Fiscal
Year 2017, which requires examples of
failure to make good faith efforts to
comply with a small business
subcontracting plan.
DATES: Interested parties should submit
written comments at the address shown
below on or before August 3, 2020 to be
considered in the formation of the final
rule.
ADDRESSES: Submit comments in
response to FAR Case 2019–004 to
https://www.regulations.gov. Submit
comments via the Federal eRulemaking
portal by searching for ‘‘FAR Case 2019–
004’’. Select the link ‘‘Comment Now’’
that corresponds with FAR Case 2019–
004. Follow the instructions provided at
the ‘‘Comment Now’’ screen. Please
include your name, company name (if
any), and ‘‘FAR Case 2019–004’’ on your
attached document. If your comment
cannot be submitted using https://
www.regulations.gov, call or email the
points of contact in the FOR FURTHER
INFORMATION CONTACT section of this
document for alternate instructions.
Instructions: Please submit comments
only and cite FAR Case 2019–004 in all
correspondence related to this case.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided. To confirm
receipt of your comment(s), please
check https://www.regulations.gov,
approximately two to three days after
submission to verify posting.
FOR FURTHER INFORMATION CONTACT: Ms.
Malissa Jones, Procurement Analyst, at
(703)605–2815, or by email at
malissa.jones@gsa.gov, for clarification
of content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat Division at
202–501–4755 or GSARegSec@gsa.gov.
Please cite FAR Case 2019–004.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing
to amend the FAR to implement section
1821 of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2017 (15 U.S.C 637 note, Pub.
L. 114–328). Section 1821 requires the
Small Business Administration (SBA) to
amend its regulations to provide
examples of activities that would be
considered a failure to make a good faith
effort to comply with a small business
subcontracting plan. SBA issued a rule
at 84 FR 65647, November 29, 2019, to
implement section 1821 of the NDAA
for FY 2017. In its rule, SBA amends 13
PO 00000
Frm 00045
Fmt 4702
Sfmt 4702
34155
CFR 125.3(d)(3) to provide guidance on
evaluating whether the prime contractor
made a good faith effort to comply with
its small business subcontracting plan
and a list of examples of activities
reflective of a failure to make a good
faith effort.
Additionally, SBA revised 13 CFR
125.3(c)(1)(iv) to require that prime
contractors with commercial
subcontracting plans include indirect
costs in their subcontracting goals.
Other than small business concerns that
have a commercial subcontracting plan
report on performance through a
summary subcontract report (SSR).
SBA’s regulations currently require that
contractors using a commercial
subcontracting plan must include
indirect costs in their SSRs, but do not
require these contractors to include
indirect costs in their subcontracting
goals, which leads to inconsistencies
when comparing the data reported in
the SSR to the goals in the commercial
subcontracting plan.
Small business subcontracting plans
are required from large prime
contractors when a contract is expected
to exceed $700,000 ($1.5 million for
construction) and has subcontracting
possibilities. FAR 19.704 lists the
elements of the plan, which include the
contractor’s goals for subcontracting to
small business concerns and a
description of the efforts the contractor
will make to ensure that small business,
veteran-owned small business, servicedisabled veteran-owned small business,
HUBZone small business, small
disadvantaged business, and womenowned small business concerns have an
equitable opportunity to compete for
subcontracts. Failure to make a good
faith effort to comply with the plan may
result in the assessment of liquidated
damages per FAR 52.219–16, Liquidated
Damages—Subcontracting Plan.
II. Discussion and Analysis
The proposed changes to the FAR are
summarized in the following
paragraphs.
A. Inclusion of Indirect Costs in
Commercial Plans
Section 19.704, Subcontracting plan
requirements, and the clause at 52.219–
9, Small Business Subcontracting Plan,
are amended to require that all indirect
costs, with certain exceptions, are
included in commercial plans and SSRs.
B. Compliance With the Subcontracting
Plan
Section 19.705–7, Liquidated
damages, is renamed ‘‘Compliance with
the subcontracting plan’’ and is
reorganized, with paragraph headings
E:\FR\FM\03JNP1.SGM
03JNP1
]]>Agencies
- Library of Congress
- U.S. Copyright Office
[Federal Register Volume 85, Number 107 (Wednesday, June 3, 2020)]
[Proposed Rules]
[Pages 34150-34155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12038]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
U.S. Copyright Office
37 CFR Part 201
[Docket No. 2020-10]
Modernizing Recordation of Notices of Termination
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of Proposed Rulemaking; Notification of Inquiry.
-----------------------------------------------------------------------
SUMMARY: The United States Copyright Office is proposing to amend
certain regulations governing the recordation of notices of
termination. Along with a parallel rulemaking focused on modernizing
document recordation in conjunction with development of the Office's
online recordation system, the proposed amendments are intended to
improve efficiency in the processing of such notices and to provide
additional guidance to the public in this area. In addition, the Office
is providing notice of changes to its examination practices for certain
notices of termination that pertain to multiple grants, and soliciting
public comment on two additional subjects of inquiry relating to
notices of termination.
DATES: Written comments must be received no later than 11:59 p.m.
Eastern Time on July 6, 2020.
ADDRESSES: For reasons of government efficiency, the Copyright Office
is using the regulations.gov system for the submission and posting of
public comments in this proceeding. All comments are therefore to be
submitted electronically through regulations.gov. Specific instructions
for submitting comments are available on the Copyright Office website
at https://www.copyright.gov/rulemaking/recordation-modernization. If
electronic submission of comments is not feasible due to lack of access
to a computer and/or the internet, please contact the Office using the
contact information below for special instructions.
FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel, by
email at [email protected], Kevin R. Amer, Deputy General Counsel,
by email at [email protected], or Nicholas R. Bartelt, Attorney-
Advisor, by email at [email protected]. Each can be contacted by
telephone by calling (202) 707-8350.
SUPPLEMENTARY INFORMATION:
I. Background
In 2017, the Office initiated a rulemaking to modernize its overall
recordation process by updating regulations governing the submission of
documents to the Office for recordation.\1\ This regulatory update was
initiated in anticipation of launching a fully electronic, online
recordation system in the future. That system is currently under
development, and a limited public pilot was launched in April 2020.
---------------------------------------------------------------------------
\1\ See Modernizing Copyright Recordation, 82 FR 52213 (Nov. 13,
2017).
---------------------------------------------------------------------------
The Office is issuing this separate notice of proposed rulemaking
(``NPRM'') to seek public comment on proposed updates to its
regulations governing recordation of notices of termination.\2\
Implementing these proposed amendments will update the regulatory
framework for notices of termination before features permitting
electronic submission of notices are developed for the online
recordation system. In addition, this NPRM clarifies Office examination
practices relating to notices of termination that contain multiple
grants. Finally, the Office invites public comment on two subjects of
inquiry: (1) Whether the Office should develop an optional form or
template to assist remitters in creating and serving notices of
termination; and (2) whether the Office should consider regulatory
updates to address concerns about third-party agents failing to
properly serve and file notices on behalf of authors.\3\
---------------------------------------------------------------------------
\2\ See 37 CFR 201.10.
\3\ This notice is focused on proposed updates to Office
practices for recording notices of termination, and is without
comment upon congressional and public interest in other substantive
issues concerning the termination statutes. See, e.g., Hearing on
Mark-up of H.R. 5283 before the H. Comm. on the Judiciary, 115th
Cong. 45-46 (2018) (statement of Rep. Zoe Lofgren) (expressing
support for expanding termination rights to legacy recording artists
who contributed to pre-72 sound recordings); id. at 53 (statement of
Rep. Sheila Jackson-Lee) (same); Moral Rights, Termination Rights,
Resale Royalty, and Copyright Term: Hearing before the Subcomm. on
the Courts, Intellectual Prop., & the internet of the H. Comm. on
the Judiciary, 113th Cong. 2-4 (2014) (statements of Reps. Coble,
Conyers, & Goodlatte) (discussing termination issues generally);
U.S. Copyright Office, Analysis of Gap Grants under the Termination
Provisions of Title 17 9 (2010) (``Gap Grant Analysis'')
(highlighting termination issues raised by public commenters outside
the focus of the gap grant analysis); Public Knowledge, Making Sense
of the Termination Right: How the System Fails Artists and How to
Fix It (Dec. 2019).
---------------------------------------------------------------------------
A. Current Rules and Practices for Recording Notices of Termination
In enacting the Copyright Act of 1976, Congress created a process
for authors to reclaim previously-granted rights in their works by
terminating grants after a period of years has elapsed. To do so,
authors, or their heirs or duly authorized agents, must serve a notice
of
[[Page 34151]]
termination on the grantee not less than two or more than ten years
before the effective date of termination stated in the notice.\4\ The
effective date of termination is a date selected by the author within a
five-year window that is set by statute. For grants executed on or
after January 1, 1978, the five-year window starts either 35 years from
the date of execution or, if the grant covers the right of publication,
40 years from the date of execution or 35 years from the date of
publication, whichever is earlier.\5\ For grants executed before
January 1, 1978, the five-year window begins 56 years from the date
copyright was originally secured.\6\ In addition, ``[a] copy of the
notice shall be recorded in the Copyright Office before the effective
date of termination, as a condition to its taking effect,'' and such
``notice shall comply, in form, content, and manner of service, with
requirements that the Register of Copyrights shall prescribe by
regulation.'' \7\ More broadly, section 702 of the Act authorizes the
Register of Copyrights to ``establish regulations . . . for the
administration of the functions and duties made the responsibility of
the Register under [title 17],'' and section 705(a) requires the
Register to ``ensure that records of . . . recordations . . . are
maintained, and that indexes of such records are prepared.'' \8\
---------------------------------------------------------------------------
\4\ See 17 U.S.C. 203(a)(4)(A), 304(c)(4)(A).
\5\ See id. at 203(a)(3).
\6\ See id. at 304(c)(3).
\7\ Id. at 203(a)(4), 304(c)(4). These provisions also apply to
section 304(d)(1), another termination provision, which incorporates
section 304(c)(4) by reference. Id. at 304(d)(1).
\8\ Id. at 702, 705(a).
---------------------------------------------------------------------------
In establishing regulations under this authority, the Office has
long been of the view that the ``required contents of the notice must
not become unduly burdensome to grantors, authors, and their
successors,'' who may lack knowledge of certain information, such as
the applicable dates.\9\ Consistent with that understanding, and to the
extent permitted by the statute, the Office generally seeks to avoid
outright rejection of termination notices submitted for recordation on
grounds of technical noncompliance with Office regulations. Instead,
where possible, the Office will correspond with remitters to assist
them in bringing deficient submissions into compliance with the
relevant regulations--for example, by supplying required information
omitted from the original submission. This general policy in favor of
recordation is particularly appropriate in light of the asymmetrical
consequences associated with the determination of whether or not to
record a notice.\10\ As the Office's regulations state, recordation is
``not a determination by the Office of the notice's validity or legal
effect'' and ``is without prejudice to any party claiming that the
legal or formal requirements for effectuating termination (including
the requirements pertaining to service and recordation of the notice of
termination) have not been met.'' \11\ By contrast, a refusal to record
can ``permanently invalidate a notice of termination that is otherwise
legally sound,'' and thereby deprive the copyright owner of the ability
to reclaim rights in her work.\12\
---------------------------------------------------------------------------
\9\ Termination of Transfers and Licenses Covering Extended
Renewal Term, 42 FR 45916, 45918 (Sept. 13, 1977) (``[W]e remain
convinced that the required contents of the notice must not become
unduly burdensome to grantors, authors, or their successors, and
must recognize that entirely legitimate reasons may exist for gaps
in their knowledge or certainty.''); id. at 45917 (``The preparation
of notice[s] of termination will be occurring at a time far removed
from the original creation and publication of the work and, in many
cases, will involve successors of original authors having little, if
any, knowledge of the details of original creation or
publication.''); id. at 45918 (recognizing that ``it will commonly
be the case that the terminating author, or the terminating renewal
claimant . . . will not have a copy of the grant or ready access to
a copy'').
\10\ The Office previously observed that adopting a permissive
recordation policy is consistent with the statutory purpose of
allowing authors to exercise their termination rights. See Gap Grant
Analysis at 3 (citing H.R. Rep. No. 94-1476, at 124 (1976); S. Rep.
No. 94-473, at 108 (1975)).
\11\ 37 CFR 201.10(f)(4); see Ray Charles Found. v. Robinson,
795 F.3d 1109, 1117-18 (9th Cir. 2015) (noting that validity and
effect of notices can only be determined by a court of law, not the
Copyright Office).
\12\ Gap Grant Analysis at ii n.3.
---------------------------------------------------------------------------
II. The Proposed Rule
After a review of the current regulatory framework in light of
overall modernization efforts, the Office proposes several amendments
and clarifications to its regulations governing notices of termination.
The Office intends for these changes to facilitate recordation and
compliance with regulatory requirements.
A. Timeliness
First, the Office proposes an amendment to restore its discretion
to record certain untimely notices if equitable circumstances warrant.
Until recently, the relevant language said that the Office ``reserves
the right to refuse recordation of a notice of termination as such if,
in the judgment of the Copyright Office, such notice is untimely.''
\13\ The current interim rule, promulgated in 2017 as part of the
parallel rulemaking on modernizing document recordation, changed the
provision to state that the Office ``will'' refuse such notices.\14\
The notice announcing the rule did not discuss the basis for that
change or state whether it was intended to narrow the Office's
discretion in this area. In any event, the Office now proposes
replacing ``will'' with ``may'' to account for the possibility that
recordation may be warranted in certain cases even where the
information available to the Office indicates that the notice is
untimely. For example, if the effective date of termination appears to
be outside the five-year termination window based on the date of
execution provided, but there is reason to believe that the work may
have been created at a later date such that the notice could in fact be
timely based on the Office's treatment of ``gap grants,'' \15\ it may
be appropriate to record the notice to allow the relevant facts to be
determined by a court if necessary. The Office believes it is
appropriate to amend the regulatory language to ensure it has the
flexibility to excuse untimeliness in cases where doing so would serve
the interests of justice and be otherwise equitable, to the extent
permitted by the statute.\16\
---------------------------------------------------------------------------
\13\ See Recordation of Notices of Termination of Transfers and
Licenses; Clarifications, 74 FR 12554, 12556 (Mar. 25, 2009).
\14\ 82 FR at 52220.
\15\ See 37 CFR 201.10(f)(1)(ii)(C) (permitting termination
under section 203 of a pre-1978 agreement to grant a work created
after January 1, 1978 ``if [the notice] recites, as the date of
execution, the date on which the work was created'').
\16\ By contrast, in cases where a notice of termination is
received by the Office on or after the effective date of
termination, the statute itself appears to prohibit the Office from
recording the notice as a notice of termination. See 17 U.S.C.
203(a)(4)(A) (``A copy of the notice shall be recorded in the
Copyright Office before the effective date of termination, as a
condition to its taking effect.''), 304(c)(4)(A) (same).
---------------------------------------------------------------------------
Second, the Office proposes a technical change to clarify an
example provided in the regulations to illustrate when a notice may be
untimely. The current regulations provide several examples of
situations when a ``notice will be considered untimely.'' The interim
rule included these examples to illustrate the types of errors that
could lead to the Office refusing to record a notice on timeliness
grounds. The examples were not, however, intended to outline the full
range of situations where a notice would be untimely. One example of
untimeliness added by the 2017 interim rule is where ``the date of
recordation is after the effective date of termination.'' \17\ This
language may cause confusion because the relevant statutory
provisions--sections 203(a)(4)(A) and 304(c)(4)(A)--provide that ``[a]
copy of the notice shall be recorded in the Copyright Office before the
effective date of termination, as a
[[Page 34152]]
condition to its taking effect.'' \18\ To clarify that submitting a
notice for recordation on the effective date of termination would also
be untimely under the statutory provisions, the Office proposes
amending the example to provide that a date of recordation ``on or''
after the effective date of termination will be considered untimely.
---------------------------------------------------------------------------
\17\ 37 CFR 201.10(f)(1)(ii)(A) (emphasis added).
\18\ 17 U.S.C. 203(a)(4)(A), 304(c)(4)(A) (emphasis added).
---------------------------------------------------------------------------
B. Harmless Errors
The Office's regulations include a ``harmless errors'' exception
providing that defects in a notice that ``do not materially affect the
adequacy of the information required to serve the purposes of 17 U.S.C.
203, 304(c), or 304(d), whichever applies, shall not render the notice
invalid.'' \19\ Case law indicates that this provision may apply to any
``immaterial'' error in a notice, such as providing incorrect addresses
or failing to include specific identifying information about each
work.\20\ The touchstone of whether an error is ``harmless'' is its
``materiality,'' which ``[is] to be viewed through the prism of the
information needed to adequately advance the purpose sought by the
statutory termination provisions themselves''--that is, balancing
protection of authors' opportunity to reclaim their rights against
grantees' interest in receiving sufficient notice of how their rights
will be affected.\21\
---------------------------------------------------------------------------
\19\ 37 CFR 201.10(e)(1).
\20\ See Horror Inc. v. Miller, 335 F. Supp. 3d 273, 319-20 (D.
Conn. 2018) (finding incorrect addresses in a notice to be harmless
error and interpreting the requirement to ``reasonably identify''
the work broadly); Siegel v. Warner Bros. Entm't, 658 F. Supp. 2d
1036, 1091-95 (C.D. Cal. 2009) (finding failure to include
information about two weeks of comics was harmless error given the
totality of information provided in the notice, including a ``catch-
all'' clause).
\21\ Siegel v. Warner Bros. Entm't, 690 F. Supp. 2d 1048, 1052
(``Siegel II''); see also Mtume v. Sony Music Entm't, 18 Civ.
6037(ER), 2019 WL 4805925, at *4 (S.D.N.Y. Sept. 30, 2019) (citing
Siegel II and explaining the competing objectives of the statutory
termination provisions).
---------------------------------------------------------------------------
In addition to this general ``harmless errors'' provision, the
regulations list several specific types of errors that are considered
harmless under the rule, provided ``the errors were made in good faith
and without any intention to deceive, mislead, or conceal relevant
information.'' \22\ These include errors in identifying the date of
registration or registration number, listing the names of the author's
heirs, or describing the precise relationships between the author and
his or her heirs.\23\ The regulations also specifically encompass
errors in ``[t]he date of execution of the grant being terminated and,
if the grant covered the right of publication of a work, the date of
publication of the work under the grant.'' \24\
---------------------------------------------------------------------------
\22\ 37 CFR 201.10(e)(2) (``Without prejudice to the general
rule provided by paragraph (e)(1) of this section, errors made in
giving the date or registration number referred to in paragraph
(b)(1)(iii), (b)(2)(iii), or (b)(2)(iv) of this section, or in
complying with the provisions of paragraph (b)(1)(vii) or
(b)(2)(vii) of this section, or in describing the precise
relationships under paragraph (c)(2) or (c)(3) of this section,
shall not affect the validity of the notice if the errors were made
in good faith and without any intention to deceive, mislead, or
conceal relevant information.''); see Johansen v. Sony Music Entm't
Inc., 19 Civ. 1094, 2020 WL 1529442, at *7 (Mar. 31, 2020) (noting
that ``the examples recited in Sec. 201.10(e)(2) were not meant to
define or otherwise set strict parameters on the circumstances where
the general harmless error rule in Sec. 201.10(e)(1) is
applicable'').
\23\ 37 CFR 201.10(e)(2).
\24\ See id. at 201.10(b)(2)(iii), (e)(2); Mtume, 2019 WL
4805925, at *4 (finding that although the date of execution provided
in the notice ``cannot be the date of creation for at least one of
the works,'' ``this date--to the extent it is incorrect--may be
harmless error'').
---------------------------------------------------------------------------
In contrast, failing to provide complete date and manner of service
information (the ``statement of service'') is a violation of Office
regulations that is not currently subject to the harmless error rule.
The current regulations mandate that a notice submitted for recordation
``must be accompanied by a statement setting forth the date on which
the notice was served and the manner of service, unless such
information is contained in the notice.'' \25\ This requirement is a
procedural rule established by the Office for recordation, rather than
statutorily-mandated component of a valid notice. It is not subject to
the harmless error rule because that rule only applies to ``errors in a
notice,'' including omissions of information from the notice,\26\ and
the statement of service is not necessarily contained in the actual
notice, as it can be provided separately.
---------------------------------------------------------------------------
\25\ 37 CFR 201.10(f)(1)(i)(B).
\26\ See id. at 201.10(e)(1). Recently, courts have held that
the omission of certain information from the notice may be harmless
in particular circumstances. See Waite v. UMG Recordings, Inc., 19-
cv-1091, 2020 WL 1530794, at *7-8 (Mar. 31, 2020) (finding omission
of the dates of execution for the relevant grants and listing
incorrect dates for the agreements governing the grants to be
harmless errors under the general provision because ``defendant has
sufficient notice as to which grants and works plaintiffs seek to
terminate'' and ``possesses the relevant agreements and can discern
the relevant dates''); Johansen, 2020 WL 1529442, at * 6-7
(concluding that the general harmless error provision encompasses
omission of specific dates of execution where ``notices clearly
identified the publication dates of the sound recordings at issue,
as well as their authors, their titles, their copyright registration
numbers and their effective dates of termination,'' such that the
``notices provide [grantee] with ample information to identify the
grants'').
---------------------------------------------------------------------------
The Office believes that errors in complying with its regulations
should be evaluated by the same harmless error standard as errors in
complying with the statutory requirements: So long as an error does not
materially affect the adequacy of the notice, it should not render the
notice invalid.\27\ The Office therefore proposes broadening the
harmless error rule beyond errors in a notice to also apply to
remitters' compliance with any Office-promulgated recordation
requirement for notices. This revision would permit the Office to treat
missing or incomplete service information the same as errors in a
notice--that is, as harmless error when a remitter does not know or is
unable to reasonably determine this information.
---------------------------------------------------------------------------
\27\ In fact, the initial harmless error provision was adopted
after public commenters proposed it as a guardrail against ``fatal
slips'' in complying with the Office's regulations governing
notices. See 42 FR at 45919 (citing comments submitted by the
Authors League of Am., Inc. and Joint Reply Comments from the
Authors League, National Music Publishers' Assoc., Inc., Am. Guild
of Authors and Composers, Columbia Pictures Indus., Inc., MGM, Inc.,
Paramount Pictures Corp., Twentieth Century-Fox Film Corp., United
Artists Corp., and Warner Bros. Inc.).
---------------------------------------------------------------------------
C. Manner of Service
The current regulations provide that service of a notice of
termination upon a grantee may be accomplished by personal service or
by first class mail.\28\ The Office proposes amending its regulations
to clarify that acceptable manners of service also include delivery by
courier services (e.g., FedEx, UPS, DHL). In addition, the Office
proposes permitting service by email, provided the recipient expressly
consents to service in this manner.\29\ These proposed amendments
recognize modern, alternative methods of service to increase
efficiencies for both remitters and grantees. The Office recently took
similar action to allow remitters to submit notices of termination for
recordation by the Office ``electronically in the form and manner
prescribed in instructions on the Office's website.'' \30\
---------------------------------------------------------------------------
\28\ 37 CFR 201.10(d)(1), (f)(1)(i)(B). These methods of service
remain unchanged since the Office first adopted regulations
governing notices of termination. See 42 FR at 45920.
\29\ The Office has adopted a similar approach in service of
notice of intention to obtain a compulsory license for making and
distributing phonorecords under 17 U.S.C. 115. See 37 CFR
201.18(a)(7), (f)(6) (permitting service by electronic transmission
in certain circumstances, including where a party has consented to
accept service by email); see also Mechanical and Digital
Phonorecord Delivery Compulsory License, 79 FR 56190, 56197 (Sept.
18, 2014).
\30\ 37 CFR 201.1(c)(2).
---------------------------------------------------------------------------
[[Page 34153]]
D. Identification of a Work
Under the current regulations, remitters must clearly identify the
title of each work to which the notice of termination applies.
Providing a registration number is not required, but is encouraged ``if
possible and practicable.'' \31\ To further encourage remitters to
identify works in notices by registration number, the Office proposes
amending the regulations to permit identification of a work by
providing: (a) The title, (b) the original copyright registration
number assigned by the Office, or (c) both pieces of information. This
approach promotes specificity when identifying works while still
allowing remitters flexibility in method of identification. It is also
the standard for how works may be identified in documents that are
recorded under section 205 of the Act.\32\ It should be noted, however,
that if a work is identified only by registration number in a notice
and there is an error in the number, the error may materially affect
the adequacy of the information, which, in turn, may affect the
validity of the notice. Accordingly, the Office recommends providing
both the title and registration number where possible.
---------------------------------------------------------------------------
\31\ Id. at 201.10(b)(1)(iii), (2)(iv).
\32\ See 17 U.S.C. 205(c) (constructive notice of a recorded
document attaches if, after being indexed by the Office, ``the
document, or material attached to it, . . . would be revealed by a
reasonable search under the title or registration number of the
work''); Copyright Office Fees, 85 FR 9374, 9383-84 (Feb. 19, 2020)
(adjusting fee structure for recordation of documents, including
notices of termination, to calculate one ``work'' as the title,
registration number, or both).
---------------------------------------------------------------------------
E. Date of Recordation
Current regulations set the date of recordation for a notice of
termination as the date when ``all of the elements of required for
recordation, including the prescribed fee and, if required, the
statement of service'' are received by the Office.\33\ This rule
harmonizes with the Office's method of determining the date of
recordation for transfers of ownership and other documents pertaining
to copyright that are recorded under section 205 of the Act.\34\
Similarly, registration applications are assigned an effective date of
registration, which is set by statute as ``day on which an application,
deposit, and fee . . . have all been received by the Office.'' \35\
---------------------------------------------------------------------------
\33\ 37 CFR 201.10(f)(3).
\34\ Id. at 201.4(a) (``The date of recordation is when all the
elements required for recordation, including a proper document, fee,
and any additional required information, are received in the
Copyright Office.''). As originally implemented, the Office only
required the ``proper document'' and fee be received by the Office.
See 43 FR 771, 772 (Jan. 4, 1978).
\35\ 17 U.S.C. 410(d).
---------------------------------------------------------------------------
Although the rule linking the date of recordation to the receipt of
a complete submission has remained essentially unchanged since
implemented in 1977, the Office has taken a fresh look at this
requirement and determined that it should be relaxed to mitigate the
harsh consequences that can result where a submission is missing
certain required elements. While many types of clerical filing errors
in notice submissions can be corrected without prejudice to the
grantee, a change to the date of recordation resulting from the
correction can have severe repercussions for the grantor. For example,
if a grantor properly serves a notice on the grantee but fails to
include a statement of service in the recordation submission to the
Office, the grantor could correct this oversight by later submitting
the statement of service. Under current regulations, however, the date
of recordation would become the date the statement of service was
received, not the date the Office first received the notice. Where the
effective date of termination has already passed before the submission
is corrected, the notice would be untimely because the statute requires
that notices be recorded before the effective date of termination.\36\
In that circumstance, assuming at least two years remained in the
termination window, the grantor would have to amend the notice by
selecting an effective date of termination at least two years later,
and serve and file that amended notice. But if the untimely notice was
rejected by the Office within the final two years of the five-year
window, the grantor would be unable to choose a different valid
effective date and would lose the opportunity to terminate altogether.
---------------------------------------------------------------------------
\36\ See id. at 203(a)(4)(A), 304(c)(4)(A). Similarly, under the
current rule, a remitter could submit an otherwise timely and
materially adequate notice for recordation, but with the improper
fee. If not corrected until after the effective date of termination,
the submission would be untimely.
---------------------------------------------------------------------------
Given these potentially severe consequences, current Office
practice permits remitters to address certain non-material errors or
omissions in notices submitted for recordation by providing information
via correspondence with the Office, rather than requiring remitters to
amend, re-serve, and re-file the notice.\37\ For example, a notice
terminating a grant under section 203 may indicate that the grant
included the right of publication, but omit the date of publication, in
which case the Office would correspond to obtain that date to determine
the applicable five-year window. In such instances, Office practice has
been to allow remitters to retain their original date of recordation
after the Office receives sufficient information to determine that the
notice may be recorded as originally submitted. The Office believes
that this practice should be extended to other non-material errors,
including specifically to situations in which the remitter has failed
to provide the prescribed fee or the statement of service.\38\ The
Office therefore proposes amending the regulations to set the date of
recordation as the date when the notice is received by the Office.
---------------------------------------------------------------------------
\37\ Cf. 37 CFR 201.10(e) (providing exceptions for harmless
errors).
\38\ The proposed change that date of recordation no longer be
conditioned upon receipt of the prescribed fee is subject to change
if the Office experiences administrative hardship from remitters
withholding fees until requested or otherwise delaying payment in a
way that affects the Office's receivables.
---------------------------------------------------------------------------
Although this approach would differ from the method of assigning a
date of recordation for other types of documents, the Office believes
this distinction is appropriate in light of key differences between the
recordation of notices of termination and the recordation of other
documents pertaining to copyright. In the context of termination
notices, it is a statutory requirement that grantees receive actual
notice before a copy of the notice is recorded with the Office.\39\
Because of this, the availability of the notice in the Office's public
records is unnecessary to ensure that a grantee has adequate notice of
the author's intention to terminate. Indeed, the notice could be
recorded years after the grantee was served so long as it is received
by the Office before the effective date of termination. In contrast,
there is no statutory requirement that parties affected by transfers of
ownership or other documents recorded under section 205 receive actual
notice.\40\ Therefore, for those types of documents, the constructive
notice that is imputed from the date of recordation by the Office may
have greater significance for affected parties than is the case in the
termination context.\41\
---------------------------------------------------------------------------
\39\ See 17 U.S.C. 203(a)(4)(A), 304(c)(4)(A).
\40\ See id. at 205.
\41\ See id. at 205(c).
---------------------------------------------------------------------------
III. Examination Practices for Notices Relating to Multiple Grants
In recent years, the Office began receiving notices of termination
relating to multiple grants, that is, notices that seek to terminate:
(a) More than one grant between the same parties (e.g., one grantor
seeks to terminate multiple, separate grants to the same grantee(s)),
or (b) more than one grant relating to the same work(s) (e.g., one
grantor seeks to
[[Page 34154]]
terminate separate grants to multiple grantees for the same work(s)).
The Office has not previously provided guidance about recording notices
that pertain to multiple grants. And in some cases, the Office has
declined to record such notices, requiring that notices pertain to a
single grant. To promote consistency and dispel confusion about whether
remitters may record notices pertaining to multiple grants, the Office
takes this opportunity to clarify its practices.
After taking a fresh look at the issue, the Office concludes that
there is nothing in the statute or current regulations barring notices
covering multiple grants.\42\ Accordingly, notices with multiple grants
will generally be recorded as a matter of convenience for authors
seeking to reclaim their rights. The Office, however, will not record
notices involving multiple grants where there is no overlap of either a
grantee or a work across the various grants. In other words, a grantor
may not use one notice to terminate multiple grants where each grant
involves a different work and different grantee(s). Notices structured
in this way would likely be administratively burdensome for the Office
to examine and process because they would effectively merge multiple
notices into one document. The current fee charged for recording a
notice of termination is based upon the staff resources required to
examine and index a single notice. While examination of a notice
relating to multiple grants may require greater resources than
examination of a single grant, the Office expects the additional burden
to typically be limited where the grants contain commonalities either
as to the grantees or the works. By contrast, recording notices
containing wholly unrelated multiple grants would likely demand more
significant additional resources and, consequently, decrease overall
processing efficiency.
---------------------------------------------------------------------------
\42\ Notably, section 203(b) states that ``[u]pon the effective
date of termination, all rights under this title that were covered
by the terminated grants revert . . . .'' The references to the
``effective date'' in the singular and ``grants'' in the plural
could be read to implicitly anticipate multiple grants in a single
notice. But given that the rest of section 203, and all of sections
304(c) and (d), refer to a ``grant'' in the singular, this one
pluralization seems far from definitive.
---------------------------------------------------------------------------
Accordingly, at this time, no additional fee will be charged for
processing notices relating to multiple grants. The Office intends to
track the volume of notices with multiple grants that are submitted,
how many grants are included per notice, and how much longer these
notices take to process, to determine whether processing time has
increased due to the need to examine and index each grant in separate
records. Using that information, the Office can reach an informed
decision about whether or not to adopt any additional fee for notices
involving multiple grants.
IV. Additional Subjects of Inquiry
In addition to the foregoing proposed regulatory changes and
clarification of examination practices, the Office solicits public
comment on the following additional topics related to notices of
termination.
A. Sample Form or Template for Notices of Termination
The Office currently does not provide forms for use in preparing
and serving notices of termination.\43\ Previously, in a 2002 notice of
proposed rulemaking, the Office sought public comment on ``whether the
Office should provide official forms for notices of termination of
transfers and licenses under sections 203, 304(c) and 304(d), and
whether the use of such forms should be made mandatory.'' \44\ In the
notice, the Office cited the potential benefits of facilitating Office
processing of notices and promoting compliance with statutory and
regulatory requirements.\45\ No comments were received, and provisions
relating to forms were not included in the final rule.\46\
---------------------------------------------------------------------------
\43\ See 37 CFR 201.10(a).
\44\ Notice of Termination, 67 FR 77951, 77953 (Dec. 20, 2002).
\45\ Id.
\46\ Notice of Termination, 68 FR 16958, 16959 (Apr. 8, 2003).
---------------------------------------------------------------------------
In light of its IT modernization efforts, the Office again invites
public comment on whether it would be beneficial for the Office to
develop an optional sample form or other template for notices of
termination, such as an online notice builder. The Office also invites
comment on any specific features that should be included in such an
option. These comments will be considered in future phases of
recordation development and may also be used in developing updated
guidance documents for the public unconnected to IT systems, including
circulars, the Compendium of U.S. Copyright Office Practices, and
online instructional materials.
B. Third-Party Agents
As is true of many types of filings with the Copyright Office,
authors sometimes entrust third-party agents to create, serve, and file
notices of termination on their behalf. Although notices filed by
third-party agents are generally recorded without incident, the Office
understands that, in some instances, third-party agents have failed to
comply with the statutory and regulatory requirements for recordation.
If third-party agents do not timely communicate problems with
recordation of notices to their clients, authors' termination rights
may be jeopardized or extinguished altogether, depending on when these
issues occur and are discovered relative to the five-year termination
window.
The Office seeks public comment on whether these concerns could be
addressed through regulatory updates, and if so, what specific changes
should be considered. In addressing this issue, commenters should be
mindful that the Office is generally seeking to make compliance with
its regulations and practices less onerous and more flexible for
remitters, and to increase efficiency in the recordation process.
Commenters should consider whether imposing additional requirements to
protect against errors or abuses by third-party agents is compatible
with those goals. Likewise, commenters may consider the effect of any
proposed change on the ability of authors to engage agents to limit the
disclosure of personally identifiable information in the public record.
IV. Conclusion
In furtherance of the Office's modernization efforts, the proposed
amendments will facilitate recordation of notices of termination by
easing compliance with requirements established by the Office. The
Office invites public comment on this proposal and on the subjects of
inquiry discussed above.
List of Subjects in 37 CFR Part 201
Copyright, General provisions.
Proposed Regulations
For the reasons set forth in the preamble, the Copyright Office
proposes amending 37 CFR part 201 as follows:
PART 201--GENERAL PROVISIONS
0
1. The authority citation for part 201 continues to read as follows:
Authority: 17 U.S.C. 702.
Sec. 201.10 [Amended]
0
2. Amend Sec. 201.10 as follows:
0
a. In paragraph (b)(1)(iii):
0
i. Remove ``and, if possible and practicable, the original copyright
registration number;''
0
ii. Add ``or the original copyright registration number, or both, if
possible and practicable,'' after ``The title'';
0
b. In paragraph (b)(2)(iv):
[[Page 34155]]
0
i. Remove ``and, if possible and practicable, the original copyright
registration number;''
0
ii. Add ``or the original copyright registration number'' after ``the
title'';
0
iii. Add ``, or both, if possible and practicable,'' after ``the
work'';
0
c. In paragraph (d), add ``or by reputable courier service delivered''
after ``by first class mail sent'' and add ``, or by means of
electronic transmission (such as email) if the grantee expressly
consents to accept service in this manner'' after ``grantee or
successor in title''.
0
d. In paragraph (e)(1), add ``preparing, serving, or seeking to
record'' after ``Harmless errors in'' and add ``or that do not
materially affect, in the Office's discretion, the Office's ability to
record the notice'' after ``whichever applies,'';
0
e. In paragraph (e)(2), remove ``or registration number'';
0
f. In paragraph (f)(1)(ii)(A), remove ``will'' from the first sentence
and add in its place ``may'', remove ``will'' from the second sentence
and add in its place ``may'', and add ``on or'' after ``the date of
recordation is''; and
0
g. In paragraph (f)(3), remove ``all of the elements required for
recordation, including the prescribed fee and, if required, the
statement of service, have been'' and add in its place ``the notice of
termination is''.
Dated: June 1, 2020.
Regan A. Smith,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2020-12038 Filed 6-2-20; 8:45 am]
BILLING CODE 1410-30-P
