Copyright Alternative in Small-Claims Enforcement (“CASE”) Act Regulations: Expedited Registration and FOIA, 46119-46123 [2021-17696]
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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.
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(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]
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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
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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
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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).
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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
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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.
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\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).
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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\
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\43\ 86 FR at 21993.
\44\ 17 U.S.C. 1506(t)(4).
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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.
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\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.'').
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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.
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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
