Copyright Alternative in Small-Claims Enforcement (“CASE”) Act Regulations: Expedited Registration and FOIA, 46119-46123 [2021-17696]

Download as PDF Federal Register / Vol. 86, No. 157 / Wednesday, August 18, 2021 / Rules and Regulations List of Subjects in 33 CFR Part 165 LIBRARY OF CONGRESS 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: Copyright Office 37 CFR Parts 201, 203 and 221 [Docket No. 2021–2] 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.T08–0644 to read as follows: ■ § 165.T08–0644 Safety Zone; Lower Mississippi River, Waxhaw, MS; MM 593– 597. jbell on DSKJLSW7X2PROD with RULES (a) Location. The following area is a safety zone: All navigable waters of the Lower Mississippi River from Mile Marker (MM) 593 through MM 597. (b) 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 Captain of the Port Sector Lower Mississippi River (COTP) or the COTP’s designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Lower Mississippi River. (2) To seek permission to enter, contact the COTP or the COTP’s representative via VHF–FM channel 16 or by telephone at 314–269–2332. 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. (c) Enforcement period. This section will be enforced from August 13, 2021, through September 15, 2021. (d) Information broadcasts. The COTP or a designated representative will inform the public of the enforcement times and date for this safety zone through Broadcast Notices to Mariners, Local Notices to Mariners, and/or Safety Marine Information Broadcasts, as appropriate. Dated: August 13, 2021. R.S. Rhodes, Captain, U.S. Coast Guard, Captain of the Port Sector Lower Mississippi River. [FR Doc. 2021–17632 Filed 8–17–21; 8:45 am] BILLING CODE 9110–04–P VerDate Sep<11>2014 16:01 Aug 17, 2021 Jkt 253001 Copyright Alternative in Small-Claims Enforcement (‘‘CASE’’) Act Regulations: Expedited Registration and FOIA U.S. Copyright Office, Library of Congress. ACTION: Final rule. AGENCY: The U.S. Copyright Office is amending its regulations to establish a new expedited registration option under the Copyright Alternative in SmallClaims Enforcement Act of 2020 and to provide a technical update to the Office’s Freedom of Information Act regulations. To qualify for this expedited registration option, the work(s) being registered must be the subject of a claim or counterclaim before the Copyright Claims Board. DATES: Effective September 17, 2021. FOR FURTHER INFORMATION CONTACT: Kevin R. Amer, Acting General Counsel and Associate Register of Copyrights, by email at kamer@copyright.gov; John R. Riley, Assistant General Counsel, by email at jril@copyright.gov, or Brad A. Greenberg, Assistant General Counsel, by email at brgr@copyright.gov. Each can be contacted by telephone at (202) 707–8350. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background A. Statutory Framework On December 27, 2020, the President signed into law the Copyright Alternative in Small-Claims Enforcement (‘‘CASE’’) Act of 2020.1 The CASE Act establishes the Copyright Claims Board (‘‘CCB’’ or ‘‘Board’’), a voluntary, alternative forum to federal court for parties to seek resolution of copyright disputes that have a low economic value (‘‘small copyright claims’’).2 The creation of the CCB does 1 Public Law 116–260, sec. 212, 134 Stat. 1182, 2176 (2020). 2 See, e.g., H.R. Rep. No. 116–252, at 18–20 (2019); S. Rep. No. 116–105, at 7–8 (2019). Note, the CASE Act legislative history cited is for H.R. 2426 and S. 1273, the CASE Act of 2019, a bill nearly identical to the CASE Act of 2020. See H.R. 2426, 116th Cong. (2019); S. 1273, 116th Cong. (2019). In developing the CASE Act, Congress drew on model legislation in the Office’s 2013 policy report, Copyright Small Claims, https://www.copyright.gov/ docs/smallclaims/usco-smallcopyrightclaims.pdf (‘‘Copyright Small Claims’’). Congress also incorporated the Office’s report and supporting materials into the statute’s legislative history. H.R. Rep. No. 116–252, at 19; S. Rep. No. 116–105, at 2. PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 46119 not displace or limit the ability to bring small copyright claims in federal court, but rather provides a more accessible alternative forum.3 The CCB has authority to hear copyright infringement claims, claims seeking a declaration of noninfringement, and misrepresentation claims under section 512(f) of title 17.4 Participation before the CCB is voluntary for all parties,5 and all determinations are non-precedential.6 The Copyright Office is in the process of standing up the CCB and intends to promulgate several operational and procedural rules.7 Congress directed the CCB to begin operations by December 27, 2021, though the Register may, for good cause, extend that deadline by not more than 180 days.8 Consistent with the overall goal of providing a cost-effective, streamlined alternative to federal litigation, the CASE Act includes provisions addressing the Copyright Act’s registration prerequisite to filing an infringement action. In general, the owner of the copyright in a United States work may not initiate an infringement suit until the Office has issued or refused to issue a copyright registration.9 Additionally, the Copyright Act provides that in most instances, for a copyright owner to qualify for an award of attorneys’ fees or statutory damages, the infringed work must have been registered on or before the date the infringement commenced, unless registration is made within three months after the work’s first publication.10 In considering the challenges facing those involved in 3 H.R. Rep. No. 116–252, at 17; S. Rep. No. 116– 105, at 2–3, 9. 4 17 U.S.C. 1504(c)(1)–(3). The CCB cannot issue injunctive relief but can require that an infringing party cease or mitigate its infringing activity in the event such party agrees and the agreement is reflected in the proceeding’s record. Id. at 1504(e)(2)(A)(i), (e)(2)(B). This provision also applies to parties making knowing material misrepresentations under section 512(f). Id. at 1504(e)(2)(A)(ii). 5 See id. at 1504(a); H.R. Rep. No. 116–252, at 17, 21; S. Rep. No. 116–105, at 3, 11. 6 H.R. Rep. No. 116–252, at 21–22, 33; S. Rep. No. 116–105, at 14. 7 See 86 FR 16156 (Mar. 26, 2021). 8 Public Law 116–260, sec. 212(d), 134 Stat. at 2199. 9 17 U.S.C. 411(a) (‘‘[N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title’’ or ‘‘the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused.’’); Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 886 (2019) (holding that ‘‘registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright’’). 10 17 U.S.C. 412. E:\FR\FM\18AUR1.SGM 18AUR1 46120 Federal Register / Vol. 86, No. 157 / Wednesday, August 18, 2021 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES small copyright claims, the Office noted that while copyright registration ‘‘helps to produce a valuable public record of American creativity as well as material information to parties in litigation,’’ at times it may also act as ‘‘a procedural hurdle for copyright claimants . . . who may not be aware of the repercussions of not registering in a timely manner.’’ 11 Congress similarly noted that ‘‘many small claimants currently do not register their works because they do not expect to be able to enforce their rights in federal court.’’ 12 The CASE Act addresses these concerns by allowing a party to file an infringement claim with the CCB once ‘‘a completed application, a deposit, and the required fee for registration’’ have been delivered to the Office.13 The legislative history characterizes this approach as taking ‘‘a more liberal attitude towards the commencement of a proceeding while registration of a work is in progress.’’ 14 But before the CCB renders a decision in any infringement dispute, the CASE Act mandates that the work at issue must be registered by the Office, and the other parties in the proceeding must have an opportunity to address the registration certificate.15 Recognizing that some infringement claims may involve works for which a registration application has been submitted, but for which the Office has not yet rendered a decision, the statute directs the CCB to hold such proceedings in abeyance.16 If the Office refuses the registration, the CCB action will be dismissed without prejudice.17 The CCB also may dismiss an action without prejudice if it has been held in abeyance for at least one year, upon providing thirty days written notice to the parties.18 As the legislative history explains, ‘‘[t]his process is intended to strike a balance between still encouraging timely registration of works with the promise of a higher damages caps [in federal court] with the reality that smaller creators may have numerous understandable reasons for not routinely engaging in the registration process.’’ 19 To ensure that the work at issue in a CCB proceeding is registered in a timely manner before the CCB issues a determination, the CASE Act directs the 11 Copyright Small Claims at 16–17; see also H.R. Rep. No. 116–252, at 25–26. 12 H.R. Rep. No. 116–252, at 26. 13 17 U.S.C. 1505(a)(1). 14 H.R. Rep. No. 116–252, at 25. 15 17 U.S.C. 1505(b)(1). 16 Id. at 1505(b)(2). 17 Id. at 1505(b)(3); see also Copyright Small Claims at 108–09. 18 17 U.S.C. 1505(b)(2). 19 H.R. Rep. No. 116–252, at 26. VerDate Sep<11>2014 16:01 Aug 17, 2021 Jkt 253001 Office to ‘‘establish regulations allowing the Copyright Office to make a decision, on an expedited basis, to issue or deny copyright registration for an unregistered work that is at issue before the Board.’’ 20 The CASE Act also limits the materials related to a CCB proceeding that must be disclosed under the Freedom of Information Act (‘‘FOIA’’). Subject to certain conditions and exceptions, FOIA requires agencies to make their records available to the public either proactively or in response to a request.21 The CASE Act provides that ‘‘[a]ll information relating to proceedings of the Copyright Claims Board under this chapter is exempt from disclosure’’ under FOIA, except for ‘‘determinations, records, and information’’ that are published on the Office’s website and that relate to a CCB final determination.22 B. Proposed Rule and Public Comment On April 26, 2021, the Office issued a notice of proposed rulemaking (the ‘‘NPRM’’) requesting public comment on proposed processes for small claims expedited registration and a conforming amendment for disclosures under FOIA.23 The NPRM proposed to allow a claimant or counterclaimant with a pending copyright registration application to seek expedited review of that application by making such a request and paying the requisite fee, but only after he or she submitted the completed registration application and the respondent either opted in to the CCB proceeding or did not timely opt out. The proposed rule would not enable the CCB to proceed with a dispute involving a work for which registration is still pending or has been denied. Additionally, the NPRM proposed an amendment to the Office’s FOIA regulations to reflect that, as required by the CASE Act, only those CCB ‘‘determinations, records, and information’’ that are published on the Office’s website and that relate to a CCB final determination are subject to disclosure under FOIA. The Office received four comments in response to the NPRM. The Office had asked stakeholders to try to submit joint comments where they had agreement, and one set of comments, submitted by 20 17 U.S.C. 1505(d). 5 U.S.C. 552. 22 17 U.S.C. 1506(t)(4). 23 86 FR 21990 (Apr. 26, 2021). Comments received in response to the April 2021 NPRM are available at https://www.regulations.gov/document/ COLC-2021-0002-0001/comment. References to comments responding to the April 2021 NPRM are by party name (abbreviated where appropriate), followed by ‘‘NPRM Comments.’’ 21 See PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 the Copyright Alliance, was joined by twenty separate stakeholder groups.24 One of those organizations, the National Press Photographers Association, also submitted separate comments. Comments were also filed by the Science Fiction and Fantasy Writers of America, Inc. (‘‘SFWA’’) and by Verizon. On the whole, the comments were broadly supportive of the proposed rule and conforming amendment, while providing substantive feedback on some specific provisions. Verizon’s comments were generally critical of the creation of CCB as an institution and raised concerns about possible abusive actions by claimants. Having carefully considered each of the comments, the Office now issues a final rule that closely follows the proposed rule, with certain modifications. First, the final rule adjusts the language pertaining to the initiation of an expedited registration request to provide that such a request may be made only after the proceeding has become active. Second, the final rule clarifies that the CCB will provide notice to all parties to a proceeding when a proceeding is dismissed without prejudice after being held in abeyance for more than one year pending a registration decision. Third, the final rule provides additional flexibility as to the methods of payment that may be accepted for small claims expedited registration. Fourth, the final rule specifies the standard governing denials of requests for small claims expedited registration. Finally, the final rule uses the word ‘‘request’’ rather than ‘‘claim’’ to refer to the action a claimant or counterclaimant takes to initiate small claims expedited registration, to remove possible confusion with other uses of the term ‘‘claim.’’ In the NPRM, the Office noted that it anticipated publishing this rule as an interim rule.25 Because, however, the public has had an opportunity to comment on the proposed rule, and in light of the limited number of comments received, the Office does not believe 24 The groups joining the Copyright Alliance are ACT | The App Association, American Photographic Artists, American Society for Collective Rights Licensing, Inc., American Society of Media Photographers, Inc., The Authors Guild, CreativeFuture, Digital Media Licensing Association, Graphic Artists Guild, Inc., Independent Book Publishers Association, Music Artists Coalition, Music Creators North America, National Music Council of the United States, National Press Photographers Association, North American Nature Photography Association, Professional Photographers of America, The Recording Academy, Screen Actors Guild-American Federation of Television and Radio Artists, Society of Composers & Lyricists, Songwriters Guild of America, Inc., and Songwriters of North America. 25 86 FR at 21992. E:\FR\FM\18AUR1.SGM 18AUR1 Federal Register / Vol. 86, No. 157 / Wednesday, August 18, 2021 / Rules and Regulations that additional written comments are necessary at this time.26 The Office therefore is publishing the rule as final. As with other CCB regulations, the Office will carefully monitor the operation of these procedures and welcomes CCB participants’ feedback as to whether further adjustments should be considered in the future. II. Final Rule A. Small Claims Expedited Registration The NPRM outlined several regulatory requirements to govern the expedited registration process. Commenters were generally supportive of the regulation’s proposed framework and substance. Recommended amendments to the proposed rule were limited to the matters discussed below. jbell on DSKJLSW7X2PROD with RULES 1. Requesting Small Claims Expedited Registration Under the CASE Act, a claim or counterclaim may be asserted before the CCB where ‘‘the legal or beneficial owner of the copyright has first delivered a completed application, a deposit, and the required fee for registration of the copyright to the Copyright Office,’’ and ‘‘a registration certificate has either been issued or has not been refused.’’ 27 The small claims expedited registration provision is designed to reduce the time required for examination of a party’s application and, in doing so, streamline claim resolution before the CCB. The NPRM provided that small claims expedited registration may be requested only after a claimant or counterclaimant ‘‘has submitted a completed registration application and the respondent has either opted in or has not timely opted out’’ of the CCB proceeding. This requirement aimed to ‘‘ensure that registration applicants do not invoke the CCB to receive special handling treatment at a discounted rate when not genuinely intending to pursue their claim through the CCB.’’ 28 The Copyright Alliance et al. objected to the inclusion of the phrase ‘‘opting in,’’ noting that the statute does not contain that language and that it therefore could cause confusion.29 To address that concern, the final rule amends the proposed rule, providing 26 Interim final rules are a common practice among federal agencies, often adopted when there is a need to promulgate a rule before comments can be received, considered, and addressed. See 5 U.S.C. 553(b)(3)(B) (good-cause exception to noticeand-comment requirements under Administrative Procedure Act). 27 17 U.S.C. 1505(a). 28 86 FR at 21992–93. 29 Copyright Alliance et al. NPRM Comments at 7. VerDate Sep<11>2014 16:01 Aug 17, 2021 Jkt 253001 that a claimant or counterclaimant may request small claims expedited registration only after it ‘‘has submitted a completed registration application and the proceeding has become active.’’ The revision reflects that there are several ways for a proceeding to become active, including when a respondent fails to timely opt out or the case is referred from a district court with consent of the parties.30 2. Abeyance The proposed rule reflected the statutory requirement that if the proceeding cannot move forward because a registration certificate for the work is still pending, the CCB will hold the proceedings in abeyance until a decision is made on the application.31 It also provided that ‘‘[i]f the proceeding has been held in abeyance for more than one year, the Copyright Claims Board may dismiss the claim or counterclaim without prejudice after providing thirty days written notice.’’ 32 The Copyright Alliance et al. asked the Office to clarify ‘‘to whom written notice will be provided.’’ 33 The final rule clarifies that the CCB will provide notice of the dismissal to all parties to the proceeding. 3. Fees The NPRM provided that a fee would be required to seek small claims expedited registration.34 In response, two commenters raised questions as to how the Office would handle small claims expedited registration requests for works included in a group registration application and whether the fee in such cases would be higher than for works not included in a group application.35 To clarify, small claims expedited registration relates to examination of the registration application as a whole, and not to examination of the specific work or works at issue before the CCB. Because the expedited registration fee is paid per registration application, small claims expedited registration for a group application will incur the same fee as is applicable to a single-work application. Thus, there is no need to revise the 30 See 17 U.S.C. 1506(i), 1509(b). The Office also removed the word ‘‘both’’ from before ‘‘completed an application’’ because only one action— completing the registration application—is taken by the claimant or counterclaimant. This change does not alter the substance of the rule. 31 Id. at 1505(b)(2). 32 86 FR at 21993. 33 Copyright Alliance et al. NPRM Comments at 10. 34 86 FR at 21992–94. 35 See Copyright Alliance et al. NPRM Comments at 8; SFWA NPRM Comments at 2–3. PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 46121 proposed rule to provide unique fees and procedures for group registrations. To keep the CCB accessible while helping to offset some of the anticipated cost increases related to small claims expedited registration, the Office has determined that a $50 fee is reasonable. Verizon argued that a $50 fee would be too low and ‘‘would incentivize claimants, large or small, to pay only $50 and file some claim at the CCB in order to gain access to a quick registration, a CCB decision, and possible statutory damages.’’ 36 The Office, however, believes it is important to keep fees low wherever possible to advance the statutory goal of providing a cost-effective alternative to federal court. While the Office appreciates the concerns over potential abuses, it should be noted that the statute specifically includes provisions to deter abusive behavior and empowers the Office to promulgate various regulations to safeguard the CCB, parties, and the public from such practices.37 The Office believes that such concerns are more properly addressed through the regulatory process than through its feesetting authority. The final rule thus does not revise the proposed fee and establishes that applicants seeking small claims expedited registration will pay a $50 fee for each request. This fee is in addition to the relevant copyright registration application fee. In line with its overall approach to fee-setting, the Office intends to periodically reassess the reasonableness of the small claims expedited registration fee once additional data about the operation of this service becomes available. 4. Methods of Payment Separately, the Copyright Alliance et al. proposed expanding the permitted methods of payment available for small claims expedited registration. The proposed rule specified that ‘‘[t]he fee for small claims expedited registration must be submitted electronically to the Copyright Claims Board and not through the Copyright Office’s electronic registration system,’’ and shall be paid, in accordance with Office instructions posted online, by ‘‘credit or debit cards, or directly from [parties’] bank accounts by means of automated clearing house (ACH) debit transactions.’’ 38 The Copyright Alliance et al. recommended providing greater flexibility by allowing payment using ‘‘prepaid cards and other widely accepted online payment options, like PayPal, Zelle, Venmo, and 36 Verizon NPRM Comments at 2. 17 U.S.C. 1504(g), 1506(y), (z); 86 FR at 16164–65. 38 86 FR at 21994. 37 See E:\FR\FM\18AUR1.SGM 18AUR1 46122 Federal Register / Vol. 86, No. 157 / Wednesday, August 18, 2021 / Rules and Regulations CashApp.’’ 39 The Office appreciates that providing additional payment options could help to advance the statute’s accessibility goals. Presently, however, the Office is unable to accept the alternative forms suggested, including because some are not supported by Pay.gov, and due to additional administrative costs. Nevertheless, in the interest of providing future flexibility, the Office is revising this portion of the final rule to remove the references to specific payment methods and instead to simply state that a claimant or counterclaimant shall follow instructions on the Copyright Office website to make electronic payments by Pay.gov. Such an approach will enable the Office to consider possible additional methods of payment as Pay.gov expands its capabilities. 5. Denied Requests jbell on DSKJLSW7X2PROD with RULES Finally, commenters addressed the proposed language allowing the Office to deny a request for small claims expedited registration if the requester did not pay the required fee or if the Office determines that the request would be unduly burdensome. Comments submitted by the Copyright Alliance et al. and by SFWA both expressed concern that the proposed rule did not define the term ‘‘unduly burdensome.’’ 40 The Copyright Alliance et al. recommended guarding against uncertainty by adopting language similar to that provided in the Compendium of U.S. Copyright Office Practices in the context of special handling requests.41 The Compendium states that the Office may reject a request for special handling if the Office ‘‘is unable to process the request based on the Office’s workload or budget at the time the request is made.’’ 42 The Office agrees that this language would provide greater certainty as to the considerations governing denial on this basis. Accordingly, the rule has been revised to provide that if the requisite fee has been paid for small claims expedited registration, the Office will grant the request unless the Office ‘‘determines that expedited registration under this section would be unduly burdensome based on the Office’s workload or budget at the time the request is made.’’ As under the 39 Copyright Alliance et al. NPRM Comments at 8–9. 40 Copyright Alliance et al. NPRM Comments at 9; SFWA NPRM Comments at 3. 41 Copyright Alliance et al. NPRM Comments at 9. 42 U.S. Copyright Office, Compendium of U.S. Copyright Office Practices sec. 623.2 (3d ed. 2021). VerDate Sep<11>2014 16:01 Aug 17, 2021 Jkt 253001 proposed rule, the Office is authorized to refund the fee in these circumstances. B. Freedom of Information Act The final rule also adopts a technical edit to the Office’s FOIA regulations to reflect the CASE Act’s reference to FOIA. The regulatory language provides that ‘‘Copyright Claims Board determinations published on the Copyright Office website and related records and information published on that website’’ may be disclosed under FOIA.43 By statute, all other materials related to CCB proceedings are exempt from disclosure under FOIA.44 Commenters raised two issues related to the proposed rule. First, the Copyright Alliance et al. argued that the rule required a technical edit—the addition of a comma before ‘‘and related records’’ to ‘‘clarify that only those records published on the Office’s website are . . . subject to FOIA.’’ 45 In their view, ‘‘[w]ithout a comma preceding ‘and related records,’ it is unclear whether ‘on that website’ is intended to modify both ‘related records and information’ or just ‘information.’ ’’ 46 To clarify, the phrase ‘‘on that website’’ is intended to modify both terms, and therefore only those CCB records published on the Office’s website will be subject to FOIA. The Office is not persuaded, however, that the addition of the suggested comma states that rule any more clearly than the text as proposed. Further, it appears that the commenters’ concern relates primarily to questions regarding which records are considered confidential and subject to a protective order.47 Those issues will be addressed in a separate rulemaking. Accordingly, the Office does not believe that the requested change is necessary. Second, SFWA expressed concern that confidential sales figures submitted to the CCB in connection with proving damages could be ‘‘placed on [the CCB’s] website or released in response to a FOIA request.’’ 48 SFWA argued that if such information is subject to FOIA, it ‘‘could easily discourage many writers and creators of copyrighted works, whom the CASE Act is intended to help, from bringing claims or raising counterclaims.’’ 49 The Office recognizes 43 86 FR at 21993. U.S.C. 1506(t)(4). 45 Copyright Alliance et al. NPRM Comments at 10. 46 Id. at 10 n.17. 47 See id. at 10 (‘‘[I]nformation provided in the course of discovery, such as documents, interrogatories, testimony, etc. should be presumed to be confidential and should not be published/ subject to FOIA.’’). 48 SFWA NPRM Comments at 3–4. 49 Id. at 4. 44 17 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 SFWA’s concern about protecting sensitive or confidential information, but, as noted, the Office intends to address these issues in a separate rulemaking. Accordingly, the conforming amendment for the Office’s FOIA regulations is unchanged in the final rule. List of Subjects 37 CFR Part 201 Copyright, General provisions. 37 CFR Part 203 Freedom of information. 37 CFR Part 221 Claims, Copyright, Registration. Final Regulations For reasons stated in the preamble, the Copyright Office amends 37 CFR chapter II as follows: PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 continues to read as follows: ■ Authority: 17 U.S.C. 702. 2. Amend § 201.3 by redesignating paragraphs (d)(8) through (17) as paragraphs (d)(9) through (18), respectively, and adding new paragraph (d)(8) to read as follows: ■ § 201.3 Fees for registration, recordation, and related services, special services, and services performed by the Licensing Division. * * * (d) * * * * * (8) Small claims expedited registration fee for each request .............. * * * * $50 * PART 203—FREEDOM OF INFORMATION ACT: POLICIES AND PROCEDURES 3. The authority citation for part 203 continues to read as follows: ■ Authority: 5 U.S.C. 552. 4. Amend § 203.1 by adding a sentence at the end of the section to read as follows: ■ § 203.1 General. * * * All information relating to proceedings of the Copyright Claims Board under chapter 15 of the Copyright Act is exempt from disclosure under FOIA, except for Copyright Claims Board determinations published on the Copyright Office website and related records and information published on that website. ■ 5. Add subchapter B, consisting of part 221, to read as follows: E:\FR\FM\18AUR1.SGM 18AUR1 Federal Register / Vol. 86, No. 157 / Wednesday, August 18, 2021 / Rules and Regulations Subchapter B—Copyright Claims Board, Library of Congress PART 221—REGISTRATION Sec. 221.1 221.2 Registration requirement. Small claims expedited registration. Authority: 17 U.S.C. 702, 1510. § 221.1 Registration requirement. (a) A claim or counterclaim alleging infringement of an exclusive right in a copyrighted work may not be asserted before the Copyright Claims Board unless the legal or beneficial owner of the copyright has first delivered a completed application, a deposit, and the required fee for registration of the copyright to the Copyright Office and a registration certificate has either been issued or has not been refused. (b) For a work that has not yet been registered, a claimant or counterclaimant who has a pending application to register the work must indicate on its claim or counterclaim notice that the work is pending registration and must include the work’s service request (SR) number that was assigned to the copyright registration claim. If the proceeding cannot continue because of a pending registration, the Copyright Claims Board shall hold proceedings in abeyance until the claimant or counterclaimant provides the Copyright Claims Board with the certificate of registration or the registration number on the certificate of registration or certificate preview. The proceeding shall be dismissed without prejudice if the Copyright Claims Board is notified that the registration application was rejected. If the proceeding has been held in abeyance for more than one year, the Copyright Claims Board may dismiss the claim or counterclaim without prejudice after providing thirty days written notice to all parties to the proceeding. jbell on DSKJLSW7X2PROD with RULES § 221.2 Small claims expedited registration. (a) Eligibility. A claimant or counterclaimant alleging infringement of an exclusive right in a copyrighted work before the Copyright Claims Board is eligible to expedite a copyright registration application under this section. This process shall be known as small claims expedited registration. (b) Initiating small claims expedited registration. The small claims expedited registration process can only be initiated after the claimant or counterclaimant has completed an application for copyright registration and the proceeding has become active. To initiate the small claims expedited registration process, the qualifying VerDate Sep<11>2014 16:01 Aug 17, 2021 Jkt 253001 claimant or counterclaimant must make a request and pay the required fee as directed by the Copyright Claims Board. Parties should request small claims expedited registration once the proceeding has become active. Parties must not attempt to initiate small claims expedited registration by using the Copyright Office’s electronic registration system (eCO). (c) Fee—(1) Amount. The small claims expedited registration fee for each request must be made for the appropriate amount, as prescribed in § 201.3(c). The fee for small claims expedited registration is intended to accelerate the registration process for a qualifying Copyright Claims Board claimant or counterclaimant that already has a pending registration application; it is in addition to, and does not offset, the fee for copyright registration. (2) Method of payment. (i) The fee for small claims expedited registration must be submitted electronically to the Copyright Claims Board and not through the Copyright Office’s electronic registration system (eCO). (ii) A claimant or counterclaimant shall follow instructions on the Copyright Office website to make electronic payments by Pay.gov. Applicants may not use a deposit account to make payments for small claims expedited registration. (3) No refunds. The small claims expedited registration fee is not refundable, unless the small claims expedited registration request is denied under paragraph (d) of this section. (d) Denied requests. If the applicant failed to pay the required fee or if the Copyright Office determines that expedited registration under this section would be unduly burdensome based on the Office’s workload or budget at the time the request is made, the Office will notify the applicant that the request has been denied and that the copyright registration claim will be examined on a regular basis. (e) Granted requests. If the request for expedited registration under this section is granted, the Office will make every attempt to examine the application or the document within ten business days after notice of the request is delivered by the Copyright Claims Board to the Copyright Office’s Office of Registration Policy and Practice, although the Copyright Office cannot guarantee that all applications or all documents will be registered or recorded within that timeframe. (f) Identical registration standards. The Copyright Office will apply the same practices and procedures when examining a copyright registration PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 46123 claim, regardless of whether the applicant asks for small claims expedited registration. Dated: August 3, 2021. Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office. Approved by: Carla D. Hayden, Librarian of Congress. [FR Doc. 2021–17696 Filed 8–17–21; 8:45 am] BILLING CODE 1410–30–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 9 and 721 [EPA–HQ–OPPT–2019–0359; FRL–7486–01– OCSPP] RIN 2070–AB27 Significant New Use Rules on Certain Chemical Substances (19–2.F) Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: EPA is issuing significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for chemical substances which were the subject of premanufacture notices (PMNs). This action requires persons to notify EPA at least 90 days before commencing manufacture (defined by statute to include import) or processing of any of these chemical substances for an activity that is designated as a significant new use by this rule. This action further requires that persons not commence manufacture or processing for the significant new use until they have submitted a Significant New Use Notice (SNUN), and EPA has conducted a review of the notice, made an appropriate determination on the notice, and has taken any risk management actions as are required as a result of that determination. DATES: This rule is effective on October 18, 2021. For purposes of judicial review, this rule shall be promulgated at 1 p.m. (e.s.t.) on September 1, 2021. FOR FURTHER INFORMATION CONTACT: For technical information contact: William Wysong, New Chemicals Division (7405M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460–0001; telephone number: (202) 564–4163; email address: wysong.william@epa.gov. For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY SUMMARY: E:\FR\FM\18AUR1.SGM 18AUR1

Agencies

[Federal Register Volume 86, Number 157 (Wednesday, August 18, 2021)]
[Rules and Regulations]
[Pages 46119-46123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17696]


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

LIBRARY OF CONGRESS

 Copyright Office

37 CFR Parts 201, 203 and 221

[Docket No. 2021-2]


Copyright Alternative in Small-Claims Enforcement (``CASE'') Act 
Regulations: Expedited Registration and FOIA

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

ACTION: Final rule.

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

SUMMARY: The U.S. Copyright Office is amending its regulations to 
establish a new expedited registration option under the Copyright 
Alternative in Small-Claims Enforcement Act of 2020 and to provide a 
technical update to the Office's Freedom of Information Act 
regulations. To qualify for this expedited registration option, the 
work(s) being registered must be the subject of a claim or counterclaim 
before the Copyright Claims Board.

DATES: Effective September 17, 2021.

FOR FURTHER INFORMATION CONTACT: Kevin R. Amer, Acting General Counsel 
and Associate Register of Copyrights, by email at [email protected]; 
John R. Riley, Assistant General Counsel, by email at 
[email protected], or Brad A. Greenberg, Assistant General Counsel, by 
email at [email protected]. Each can be contacted by telephone at 
(202) 707-8350.

SUPPLEMENTARY INFORMATION:

I. Background

A. Statutory Framework

    On December 27, 2020, the President signed into law the Copyright 
Alternative in Small-Claims Enforcement (``CASE'') Act of 2020.\1\ The 
CASE Act establishes the Copyright Claims Board (``CCB'' or ``Board''), 
a voluntary, alternative forum to federal court for parties to seek 
resolution of copyright disputes that have a low economic value 
(``small copyright claims'').\2\ The creation of the CCB does not 
displace or limit the ability to bring small copyright claims in 
federal court, but rather provides a more accessible alternative 
forum.\3\ The CCB has authority to hear copyright infringement claims, 
claims seeking a declaration of noninfringement, and misrepresentation 
claims under section 512(f) of title 17.\4\ Participation before the 
CCB is voluntary for all parties,\5\ and all determinations are non-
precedential.\6\ The Copyright Office is in the process of standing up 
the CCB and intends to promulgate several operational and procedural 
rules.\7\ Congress directed the CCB to begin operations by December 27, 
2021, though the Register may, for good cause, extend that deadline by 
not more than 180 days.\8\
---------------------------------------------------------------------------

    \1\ Public Law 116-260, sec. 212, 134 Stat. 1182, 2176 (2020).
    \2\ See, e.g., H.R. Rep. No. 116-252, at 18-20 (2019); S. Rep. 
No. 116-105, at 7-8 (2019). Note, the CASE Act legislative history 
cited is for H.R. 2426 and S. 1273, the CASE Act of 2019, a bill 
nearly identical to the CASE Act of 2020. See H.R. 2426, 116th Cong. 
(2019); S. 1273, 116th Cong. (2019). In developing the CASE Act, 
Congress drew on model legislation in the Office's 2013 policy 
report, Copyright Small Claims, https://www.copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf (``Copyright Small 
Claims''). Congress also incorporated the Office's report and 
supporting materials into the statute's legislative history. H.R. 
Rep. No. 116-252, at 19; S. Rep. No. 116-105, at 2.
    \3\ H.R. Rep. No. 116-252, at 17; S. Rep. No. 116-105, at 2-3, 
9.
    \4\ 17 U.S.C. 1504(c)(1)-(3). The CCB cannot issue injunctive 
relief but can require that an infringing party cease or mitigate 
its infringing activity in the event such party agrees and the 
agreement is reflected in the proceeding's record. Id. at 
1504(e)(2)(A)(i), (e)(2)(B). This provision also applies to parties 
making knowing material misrepresentations under section 512(f). Id. 
at 1504(e)(2)(A)(ii).
    \5\ See id. at 1504(a); H.R. Rep. No. 116-252, at 17, 21; S. 
Rep. No. 116-105, at 3, 11.
    \6\ H.R. Rep. No. 116-252, at 21-22, 33; S. Rep. No. 116-105, at 
14.
    \7\ See 86 FR 16156 (Mar. 26, 2021).
    \8\ Public Law 116-260, sec. 212(d), 134 Stat. at 2199.
---------------------------------------------------------------------------

    Consistent with the overall goal of providing a cost-effective, 
streamlined alternative to federal litigation, the CASE Act includes 
provisions addressing the Copyright Act's registration prerequisite to 
filing an infringement action. In general, the owner of the copyright 
in a United States work may not initiate an infringement suit until the 
Office has issued or refused to issue a copyright registration.\9\ 
Additionally, the Copyright Act provides that in most instances, for a 
copyright owner to qualify for an award of attorneys' fees or statutory 
damages, the infringed work must have been registered on or before the 
date the infringement commenced, unless registration is made within 
three months after the work's first publication.\10\ In considering the 
challenges facing those involved in

[[Page 46120]]

small copyright claims, the Office noted that while copyright 
registration ``helps to produce a valuable public record of American 
creativity as well as material information to parties in litigation,'' 
at times it may also act as ``a procedural hurdle for copyright 
claimants . . . who may not be aware of the repercussions of not 
registering in a timely manner.'' \11\ Congress similarly noted that 
``many small claimants currently do not register their works because 
they do not expect to be able to enforce their rights in federal 
court.'' \12\
---------------------------------------------------------------------------

    \9\ 17 U.S.C. 411(a) (``[N]o civil action for infringement of 
the copyright in any United States work shall be instituted until 
preregistration or registration of the copyright claim has been made 
in accordance with this title'' or ``the deposit, application, and 
fee required for registration have been delivered to the Copyright 
Office in proper form and registration has been refused.''); Fourth 
Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 
886 (2019) (holding that ``registration occurs, and a copyright 
claimant may commence an infringement suit, when the Copyright 
Office registers a copyright'').
    \10\ 17 U.S.C. 412.
    \11\ Copyright Small Claims at 16-17; see also H.R. Rep. No. 
116-252, at 25-26.
    \12\ H.R. Rep. No. 116-252, at 26.
---------------------------------------------------------------------------

    The CASE Act addresses these concerns by allowing a party to file 
an infringement claim with the CCB once ``a completed application, a 
deposit, and the required fee for registration'' have been delivered to 
the Office.\13\ The legislative history characterizes this approach as 
taking ``a more liberal attitude towards the commencement of a 
proceeding while registration of a work is in progress.'' \14\ But 
before the CCB renders a decision in any infringement dispute, the CASE 
Act mandates that the work at issue must be registered by the Office, 
and the other parties in the proceeding must have an opportunity to 
address the registration certificate.\15\ Recognizing that some 
infringement claims may involve works for which a registration 
application has been submitted, but for which the Office has not yet 
rendered a decision, the statute directs the CCB to hold such 
proceedings in abeyance.\16\ If the Office refuses the registration, 
the CCB action will be dismissed without prejudice.\17\ The CCB also 
may dismiss an action without prejudice if it has been held in abeyance 
for at least one year, upon providing thirty days written notice to the 
parties.\18\ As the legislative history explains, ``[t]his process is 
intended to strike a balance between still encouraging timely 
registration of works with the promise of a higher damages caps [in 
federal court] with the reality that smaller creators may have numerous 
understandable reasons for not routinely engaging in the registration 
process.'' \19\
---------------------------------------------------------------------------

    \13\ 17 U.S.C. 1505(a)(1).
    \14\ H.R. Rep. No. 116-252, at 25.
    \15\ 17 U.S.C. 1505(b)(1).
    \16\ Id. at 1505(b)(2).
    \17\ Id. at 1505(b)(3); see also Copyright Small Claims at 108-
09.
    \18\ 17 U.S.C. 1505(b)(2).
    \19\ H.R. Rep. No. 116-252, at 26.
---------------------------------------------------------------------------

    To ensure that the work at issue in a CCB proceeding is registered 
in a timely manner before the CCB issues a determination, the CASE Act 
directs the Office to ``establish regulations allowing the Copyright 
Office to make a decision, on an expedited basis, to issue or deny 
copyright registration for an unregistered work that is at issue before 
the Board.'' \20\
---------------------------------------------------------------------------

    \20\ 17 U.S.C. 1505(d).
---------------------------------------------------------------------------

    The CASE Act also limits the materials related to a CCB proceeding 
that must be disclosed under the Freedom of Information Act (``FOIA''). 
Subject to certain conditions and exceptions, FOIA requires agencies to 
make their records available to the public either proactively or in 
response to a request.\21\ The CASE Act provides that ``[a]ll 
information relating to proceedings of the Copyright Claims Board under 
this chapter is exempt from disclosure'' under FOIA, except for 
``determinations, records, and information'' that are published on the 
Office's website and that relate to a CCB final determination.\22\
---------------------------------------------------------------------------

    \21\ See 5 U.S.C. 552.
    \22\ 17 U.S.C. 1506(t)(4).
---------------------------------------------------------------------------

B. Proposed Rule and Public Comment

    On April 26, 2021, the Office issued a notice of proposed 
rulemaking (the ``NPRM'') requesting public comment on proposed 
processes for small claims expedited registration and a conforming 
amendment for disclosures under FOIA.\23\ The NPRM proposed to allow a 
claimant or counterclaimant with a pending copyright registration 
application to seek expedited review of that application by making such 
a request and paying the requisite fee, but only after he or she 
submitted the completed registration application and the respondent 
either opted in to the CCB proceeding or did not timely opt out. The 
proposed rule would not enable the CCB to proceed with a dispute 
involving a work for which registration is still pending or has been 
denied. Additionally, the NPRM proposed an amendment to the Office's 
FOIA regulations to reflect that, as required by the CASE Act, only 
those CCB ``determinations, records, and information'' that are 
published on the Office's website and that relate to a CCB final 
determination are subject to disclosure under FOIA.
---------------------------------------------------------------------------

    \23\ 86 FR 21990 (Apr. 26, 2021). Comments received in response 
to the April 2021 NPRM are available at https://www.regulations.gov/document/COLC-2021-0002-0001/comment. References to comments 
responding to the April 2021 NPRM are by party name (abbreviated 
where appropriate), followed by ``NPRM Comments.''
---------------------------------------------------------------------------

    The Office received four comments in response to the NPRM. The 
Office had asked stakeholders to try to submit joint comments where 
they had agreement, and one set of comments, submitted by the Copyright 
Alliance, was joined by twenty separate stakeholder groups.\24\ One of 
those organizations, the National Press Photographers Association, also 
submitted separate comments. Comments were also filed by the Science 
Fiction and Fantasy Writers of America, Inc. (``SFWA'') and by Verizon. 
On the whole, the comments were broadly supportive of the proposed rule 
and conforming amendment, while providing substantive feedback on some 
specific provisions. Verizon's comments were generally critical of the 
creation of CCB as an institution and raised concerns about possible 
abusive actions by claimants.
---------------------------------------------------------------------------

    \24\ The groups joining the Copyright Alliance are ACT [verbar] 
The App Association, American Photographic Artists, American Society 
for Collective Rights Licensing, Inc., American Society of Media 
Photographers, Inc., The Authors Guild, CreativeFuture, Digital 
Media Licensing Association, Graphic Artists Guild, Inc., 
Independent Book Publishers Association, Music Artists Coalition, 
Music Creators North America, National Music Council of the United 
States, National Press Photographers Association, North American 
Nature Photography Association, Professional Photographers of 
America, The Recording Academy, Screen Actors Guild-American 
Federation of Television and Radio Artists, Society of Composers & 
Lyricists, Songwriters Guild of America, Inc., and Songwriters of 
North America.
---------------------------------------------------------------------------

    Having carefully considered each of the comments, the Office now 
issues a final rule that closely follows the proposed rule, with 
certain modifications. First, the final rule adjusts the language 
pertaining to the initiation of an expedited registration request to 
provide that such a request may be made only after the proceeding has 
become active. Second, the final rule clarifies that the CCB will 
provide notice to all parties to a proceeding when a proceeding is 
dismissed without prejudice after being held in abeyance for more than 
one year pending a registration decision. Third, the final rule 
provides additional flexibility as to the methods of payment that may 
be accepted for small claims expedited registration. Fourth, the final 
rule specifies the standard governing denials of requests for small 
claims expedited registration. Finally, the final rule uses the word 
``request'' rather than ``claim'' to refer to the action a claimant or 
counterclaimant takes to initiate small claims expedited registration, 
to remove possible confusion with other uses of the term ``claim.''
    In the NPRM, the Office noted that it anticipated publishing this 
rule as an interim rule.\25\ Because, however, the public has had an 
opportunity to comment on the proposed rule, and in light of the 
limited number of comments received, the Office does not believe

[[Page 46121]]

that additional written comments are necessary at this time.\26\ The 
Office therefore is publishing the rule as final. As with other CCB 
regulations, the Office will carefully monitor the operation of these 
procedures and welcomes CCB participants' feedback as to whether 
further adjustments should be considered in the future.
---------------------------------------------------------------------------

    \25\ 86 FR at 21992.
    \26\ Interim final rules are a common practice among federal 
agencies, often adopted when there is a need to promulgate a rule 
before comments can be received, considered, and addressed. See 5 
U.S.C. 553(b)(3)(B) (good-cause exception to notice-and-comment 
requirements under Administrative Procedure Act).
---------------------------------------------------------------------------

II. Final Rule

A. Small Claims Expedited Registration

    The NPRM outlined several regulatory requirements to govern the 
expedited registration process. Commenters were generally supportive of 
the regulation's proposed framework and substance. Recommended 
amendments to the proposed rule were limited to the matters discussed 
below.
1. Requesting Small Claims Expedited Registration
    Under the CASE Act, a claim or counterclaim may be asserted before 
the CCB where ``the legal or beneficial owner of the copyright has 
first delivered a completed application, a deposit, and the required 
fee for registration of the copyright to the Copyright Office,'' and 
``a registration certificate has either been issued or has not been 
refused.'' \27\ The small claims expedited registration provision is 
designed to reduce the time required for examination of a party's 
application and, in doing so, streamline claim resolution before the 
CCB. The NPRM provided that small claims expedited registration may be 
requested only after a claimant or counterclaimant ``has submitted a 
completed registration application and the respondent has either opted 
in or has not timely opted out'' of the CCB proceeding. This 
requirement aimed to ``ensure that registration applicants do not 
invoke the CCB to receive special handling treatment at a discounted 
rate when not genuinely intending to pursue their claim through the 
CCB.'' \28\
---------------------------------------------------------------------------

    \27\ 17 U.S.C. 1505(a).
    \28\ 86 FR at 21992-93.
---------------------------------------------------------------------------

    The Copyright Alliance et al. objected to the inclusion of the 
phrase ``opting in,'' noting that the statute does not contain that 
language and that it therefore could cause confusion.\29\ To address 
that concern, the final rule amends the proposed rule, providing that a 
claimant or counterclaimant may request small claims expedited 
registration only after it ``has submitted a completed registration 
application and the proceeding has become active.'' The revision 
reflects that there are several ways for a proceeding to become active, 
including when a respondent fails to timely opt out or the case is 
referred from a district court with consent of the parties.\30\
---------------------------------------------------------------------------

    \29\ Copyright Alliance et al. NPRM Comments at 7.
    \30\ See 17 U.S.C. 1506(i), 1509(b). The Office also removed the 
word ``both'' from before ``completed an application'' because only 
one action--completing the registration application--is taken by the 
claimant or counterclaimant. This change does not alter the 
substance of the rule.
---------------------------------------------------------------------------

2. Abeyance
    The proposed rule reflected the statutory requirement that if the 
proceeding cannot move forward because a registration certificate for 
the work is still pending, the CCB will hold the proceedings in 
abeyance until a decision is made on the application.\31\ It also 
provided that ``[i]f the proceeding has been held in abeyance for more 
than one year, the Copyright Claims Board may dismiss the claim or 
counterclaim without prejudice after providing thirty days written 
notice.'' \32\ The Copyright Alliance et al. asked the Office to 
clarify ``to whom written notice will be provided.'' \33\ The final 
rule clarifies that the CCB will provide notice of the dismissal to all 
parties to the proceeding.
---------------------------------------------------------------------------

    \31\ Id. at 1505(b)(2).
    \32\ 86 FR at 21993.
    \33\ Copyright Alliance et al. NPRM Comments at 10.
---------------------------------------------------------------------------

3. Fees
    The NPRM provided that a fee would be required to seek small claims 
expedited registration.\34\ In response, two commenters raised 
questions as to how the Office would handle small claims expedited 
registration requests for works included in a group registration 
application and whether the fee in such cases would be higher than for 
works not included in a group application.\35\ To clarify, small claims 
expedited registration relates to examination of the registration 
application as a whole, and not to examination of the specific work or 
works at issue before the CCB. Because the expedited registration fee 
is paid per registration application, small claims expedited 
registration for a group application will incur the same fee as is 
applicable to a single-work application. Thus, there is no need to 
revise the proposed rule to provide unique fees and procedures for 
group registrations.
---------------------------------------------------------------------------

    \34\ 86 FR at 21992-94.
    \35\ See Copyright Alliance et al. NPRM Comments at 8; SFWA NPRM 
Comments at 2-3.
---------------------------------------------------------------------------

    To keep the CCB accessible while helping to offset some of the 
anticipated cost increases related to small claims expedited 
registration, the Office has determined that a $50 fee is reasonable. 
Verizon argued that a $50 fee would be too low and ``would incentivize 
claimants, large or small, to pay only $50 and file some claim at the 
CCB in order to gain access to a quick registration, a CCB decision, 
and possible statutory damages.'' \36\ The Office, however, believes it 
is important to keep fees low wherever possible to advance the 
statutory goal of providing a cost-effective alternative to federal 
court. While the Office appreciates the concerns over potential abuses, 
it should be noted that the statute specifically includes provisions to 
deter abusive behavior and empowers the Office to promulgate various 
regulations to safeguard the CCB, parties, and the public from such 
practices.\37\ The Office believes that such concerns are more properly 
addressed through the regulatory process than through its fee-setting 
authority. The final rule thus does not revise the proposed fee and 
establishes that applicants seeking small claims expedited registration 
will pay a $50 fee for each request. This fee is in addition to the 
relevant copyright registration application fee. In line with its 
overall approach to fee-setting, the Office intends to periodically 
reassess the reasonableness of the small claims expedited registration 
fee once additional data about the operation of this service becomes 
available.
---------------------------------------------------------------------------

    \36\ Verizon NPRM Comments at 2.
    \37\ See 17 U.S.C. 1504(g), 1506(y), (z); 86 FR at 16164-65.
---------------------------------------------------------------------------

4. Methods of Payment
    Separately, the Copyright Alliance et al. proposed expanding the 
permitted methods of payment available for small claims expedited 
registration. The proposed rule specified that ``[t]he fee for small 
claims expedited registration must be submitted electronically to the 
Copyright Claims Board and not through the Copyright Office's 
electronic registration system,'' and shall be paid, in accordance with 
Office instructions posted online, by ``credit or debit cards, or 
directly from [parties'] bank accounts by means of automated clearing 
house (ACH) debit transactions.'' \38\ The Copyright Alliance et al. 
recommended providing greater flexibility by allowing payment using 
``prepaid cards and other widely accepted online payment options, like 
PayPal, Zelle, Venmo, and

[[Page 46122]]

CashApp.'' \39\ The Office appreciates that providing additional 
payment options could help to advance the statute's accessibility 
goals. Presently, however, the Office is unable to accept the 
alternative forms suggested, including because some are not supported 
by Pay.gov, and due to additional administrative costs. Nevertheless, 
in the interest of providing future flexibility, the Office is revising 
this portion of the final rule to remove the references to specific 
payment methods and instead to simply state that a claimant or 
counterclaimant shall follow instructions on the Copyright Office 
website to make electronic payments by Pay.gov. Such an approach will 
enable the Office to consider possible additional methods of payment as 
Pay.gov expands its capabilities.
---------------------------------------------------------------------------

    \38\ 86 FR at 21994.
    \39\ Copyright Alliance et al. NPRM Comments at 8-9.
---------------------------------------------------------------------------

5. Denied Requests
    Finally, commenters addressed the proposed language allowing the 
Office to deny a request for small claims expedited registration if the 
requester did not pay the required fee or if the Office determines that 
the request would be unduly burdensome. Comments submitted by the 
Copyright Alliance et al. and by SFWA both expressed concern that the 
proposed rule did not define the term ``unduly burdensome.'' \40\ The 
Copyright Alliance et al. recommended guarding against uncertainty by 
adopting language similar to that provided in the Compendium of U.S. 
Copyright Office Practices in the context of special handling 
requests.\41\ The Compendium states that the Office may reject a 
request for special handling if the Office ``is unable to process the 
request based on the Office's workload or budget at the time the 
request is made.'' \42\ The Office agrees that this language would 
provide greater certainty as to the considerations governing denial on 
this basis. Accordingly, the rule has been revised to provide that if 
the requisite fee has been paid for small claims expedited 
registration, the Office will grant the request unless the Office 
``determines that expedited registration under this section would be 
unduly burdensome based on the Office's workload or budget at the time 
the request is made.'' As under the proposed rule, the Office is 
authorized to refund the fee in these circumstances.
---------------------------------------------------------------------------

    \40\ Copyright Alliance et al. NPRM Comments at 9; SFWA NPRM 
Comments at 3.
    \41\ Copyright Alliance et al. NPRM Comments at 9.
    \42\ U.S. Copyright Office, Compendium of U.S. Copyright Office 
Practices sec. 623.2 (3d ed. 2021).
---------------------------------------------------------------------------

B. Freedom of Information Act

    The final rule also adopts a technical edit to the Office's FOIA 
regulations to reflect the CASE Act's reference to FOIA. The regulatory 
language provides that ``Copyright Claims Board determinations 
published on the Copyright Office website and related records and 
information published on that website'' may be disclosed under 
FOIA.\43\ By statute, all other materials related to CCB proceedings 
are exempt from disclosure under FOIA.\44\
---------------------------------------------------------------------------

    \43\ 86 FR at 21993.
    \44\ 17 U.S.C. 1506(t)(4).
---------------------------------------------------------------------------

    Commenters raised two issues related to the proposed rule. First, 
the Copyright Alliance et al. argued that the rule required a technical 
edit--the addition of a comma before ``and related records'' to 
``clarify that only those records published on the Office's website are 
. . . subject to FOIA.'' \45\ In their view, ``[w]ithout a comma 
preceding `and related records,' it is unclear whether `on that 
website' is intended to modify both `related records and information' 
or just `information.' '' \46\ To clarify, the phrase ``on that 
website'' is intended to modify both terms, and therefore only those 
CCB records published on the Office's website will be subject to FOIA. 
The Office is not persuaded, however, that the addition of the 
suggested comma states that rule any more clearly than the text as 
proposed. Further, it appears that the commenters' concern relates 
primarily to questions regarding which records are considered 
confidential and subject to a protective order.\47\ Those issues will 
be addressed in a separate rulemaking. Accordingly, the Office does not 
believe that the requested change is necessary.
---------------------------------------------------------------------------

    \45\ Copyright Alliance et al. NPRM Comments at 10.
    \46\ Id. at 10 n.17.
    \47\ See id. at 10 (``[I]nformation provided in the course of 
discovery, such as documents, interrogatories, testimony, etc. 
should be presumed to be confidential and should not be published/
subject to FOIA.'').
---------------------------------------------------------------------------

    Second, SFWA expressed concern that confidential sales figures 
submitted to the CCB in connection with proving damages could be 
``placed on [the CCB's] website or released in response to a FOIA 
request.'' \48\ SFWA argued that if such information is subject to 
FOIA, it ``could easily discourage many writers and creators of 
copyrighted works, whom the CASE Act is intended to help, from bringing 
claims or raising counterclaims.'' \49\ The Office recognizes SFWA's 
concern about protecting sensitive or confidential information, but, as 
noted, the Office intends to address these issues in a separate 
rulemaking. Accordingly, the conforming amendment for the Office's FOIA 
regulations is unchanged in the final rule.
---------------------------------------------------------------------------

    \48\ SFWA NPRM Comments at 3-4.
    \49\ Id. at 4.
---------------------------------------------------------------------------

List of Subjects

37 CFR Part 201

    Copyright, General provisions.

37 CFR Part 203

    Freedom of information.

37 CFR Part 221

    Claims, Copyright, Registration.

Final Regulations

    For reasons stated in the preamble, the Copyright Office amends 37 
CFR chapter II as follows:

PART 201--GENERAL PROVISIONS

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

    Authority:  17 U.S.C. 702.

0
2. Amend Sec.  201.3 by redesignating paragraphs (d)(8) through (17) as 
paragraphs (d)(9) through (18), respectively, and adding new paragraph 
(d)(8) to read as follows:


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

* * * * *
    (d) * * *

(8) Small claims expedited registration fee for each request...      $50
 

* * * * *

PART 203--FREEDOM OF INFORMATION ACT: POLICIES AND PROCEDURES

0
3. The authority citation for part 203 continues to read as follows:

    Authority:  5 U.S.C. 552.

0
4. Amend Sec.  203.1 by adding a sentence at the end of the section to 
read as follows:


Sec.  203.1   General.

    * * * All information relating to proceedings of the Copyright 
Claims Board under chapter 15 of the Copyright Act is exempt from 
disclosure under FOIA, except for Copyright Claims Board determinations 
published on the Copyright Office website and related records and 
information published on that website.

0
5. Add subchapter B, consisting of part 221, to read as follows:

[[Page 46123]]

Subchapter B--Copyright Claims Board, Library of Congress

PART 221--REGISTRATION

Sec.
221.1 Registration requirement.
221.2 Small claims expedited registration.

    Authority:  17 U.S.C. 702, 1510.


Sec.  221.1   Registration requirement.

    (a) A claim or counterclaim alleging infringement of an exclusive 
right in a copyrighted work may not be asserted before the Copyright 
Claims Board unless the legal or beneficial owner of the copyright has 
first delivered a completed application, a deposit, and the required 
fee for registration of the copyright to the Copyright Office and a 
registration certificate has either been issued or has not been 
refused.
    (b) For a work that has not yet been registered, a claimant or 
counterclaimant who has a pending application to register the work must 
indicate on its claim or counterclaim notice that the work is pending 
registration and must include the work's service request (SR) number 
that was assigned to the copyright registration claim. If the 
proceeding cannot continue because of a pending registration, the 
Copyright Claims Board shall hold proceedings in abeyance until the 
claimant or counterclaimant provides the Copyright Claims Board with 
the certificate of registration or the registration number on the 
certificate of registration or certificate preview. The proceeding 
shall be dismissed without prejudice if the Copyright Claims Board is 
notified that the registration application was rejected. If the 
proceeding has been held in abeyance for more than one year, the 
Copyright Claims Board may dismiss the claim or counterclaim without 
prejudice after providing thirty days written notice to all parties to 
the proceeding.


Sec.  221.2   Small claims expedited registration.

    (a) Eligibility. A claimant or counterclaimant alleging 
infringement of an exclusive right in a copyrighted work before the 
Copyright Claims Board is eligible to expedite a copyright registration 
application under this section. This process shall be known as small 
claims expedited registration.
    (b) Initiating small claims expedited registration. The small 
claims expedited registration process can only be initiated after the 
claimant or counterclaimant has completed an application for copyright 
registration and the proceeding has become active. To initiate the 
small claims expedited registration process, the qualifying claimant or 
counterclaimant must make a request and pay the required fee as 
directed by the Copyright Claims Board. Parties should request small 
claims expedited registration once the proceeding has become active. 
Parties must not attempt to initiate small claims expedited 
registration by using the Copyright Office's electronic registration 
system (eCO).
    (c) Fee--(1) Amount. The small claims expedited registration fee 
for each request must be made for the appropriate amount, as prescribed 
in Sec.  201.3(c). The fee for small claims expedited registration is 
intended to accelerate the registration process for a qualifying 
Copyright Claims Board claimant or counterclaimant that already has a 
pending registration application; it is in addition to, and does not 
offset, the fee for copyright registration.
    (2) Method of payment. (i) The fee for small claims expedited 
registration must be submitted electronically to the Copyright Claims 
Board and not through the Copyright Office's electronic registration 
system (eCO).
    (ii) A claimant or counterclaimant shall follow instructions on the 
Copyright Office website to make electronic payments by Pay.gov. 
Applicants may not use a deposit account to make payments for small 
claims expedited registration.
    (3) No refunds. The small claims expedited registration fee is not 
refundable, unless the small claims expedited registration request is 
denied under paragraph (d) of this section.
    (d) Denied requests. If the applicant failed to pay the required 
fee or if the Copyright Office determines that expedited registration 
under this section would be unduly burdensome based on the Office's 
workload or budget at the time the request is made, the Office will 
notify the applicant that the request has been denied and that the 
copyright registration claim will be examined on a regular basis.
    (e) Granted requests. If the request for expedited registration 
under this section is granted, the Office will make every attempt to 
examine the application or the document within ten business days after 
notice of the request is delivered by the Copyright Claims Board to the 
Copyright Office's Office of Registration Policy and Practice, although 
the Copyright Office cannot guarantee that all applications or all 
documents will be registered or recorded within that timeframe.
    (f) Identical registration standards. The Copyright Office will 
apply the same practices and procedures when examining a copyright 
registration claim, regardless of whether the applicant asks for small 
claims expedited registration.

    Dated: August 3, 2021.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.

Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2021-17696 Filed 8-17-21; 8:45 am]
BILLING CODE 1410-30-P