Copyright Claims Board: Representation by Law Students and of Business Entities, 74394-74398 [2021-28154]
Download as PDF
<![CDATA[
74394
Proposed Rules
Federal Register
Vol. 86, No. 248
Thursday, December 30, 2021
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
LIBRARY OF CONGRESS
Copyright Office
37 CFR Parts 201, 232, and 234
[Docket No. 2021–9]
Copyright Claims Board:
Representation by Law Students and
of Business Entities
U.S. Copyright Office, Library
of Congress.
AGENCY:
ACTION:
Notice of proposed rulemaking.
The U.S. Copyright Office is
issuing a notice of proposed rulemaking
to establish procedures governing the
appearance of law student
representatives and employees of
business entities in proceedings before
the Copyright Claims Board.
SUMMARY:
Initial written comments must be
received no later than 11:59 p.m. EDT
on February 3, 2022. Written reply
comments must be received no later
than 11:59 p.m. EDT on February 18,
2022.
DATES:
For reasons of Government
efficiency, the Copyright Office is using
the Regulations.gov system for the
submission and posting of public
comments in this proceeding. All
comments are therefore to be submitted
electronically through regulations.gov.
Specific instructions for submitting
comments are available on the
Copyright Office website at https://
copyright.gov/rulemaking/case-actimplementation/representation/. If
electronic submission of comments is
not feasible due to lack of access to a
computer or the internet, please contact
the Office using the contact information
below for special instructions.
khammond on DSKJM1Z7X2PROD with PROPOSALS
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Megan Efthimiadis, Assistant to the
General Counsel, by email at meft@
copyright.gov, or by telephone at 202–
707–8350.
SUPPLEMENTARY INFORMATION:
VerDate Sep<11>2014
17:03 Dec 29, 2021
Jkt 256001
I. Background
On December 27, 2020, the President
signed into law the Copyright
Alternative in Small-Claims
Enforcement (‘‘CASE’’) Act of 2020.1
The CASE Act directs the Copyright
Office to establish the Copyright Claims
Board (‘‘CCB’’), an alternative forum to
federal court in which parties may seek
resolution of copyright disputes that are
capped at a lower economic value.2 The
CCB has authority to hear copyright
infringement claims, claims seeking a
declaration of non-infringement, and
misrepresentation claims under section
512(f) of title 17.3 Participation in the
CCB is voluntary for all parties,4 and all
determinations are non-precedential.5
The CASE Act directs the Register of
Copyrights to establish the regulations
by which the CCB will conduct its
proceedings, subject to the provisions of
chapter 15 and relevant principles of
law under title 17.6 The Office has
issued a notification of inquiry
(‘‘NOI’’),7 three notices of proposed
rulemaking (‘‘NPRMs’’),8 and one final
rule 9 related to CCB procedures. In this
notice of proposed rulemaking, the
Office proposes procedures governing
qualified law students who represent
parties in CCB proceedings and
procedures governing representation of
corporations, limited liability
companies, partnerships, sole
proprietorships, or other unincorporated
associations (collectively, ‘‘business
entities’’).
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 1–3 (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).
3 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).
4 Id. at 1504(a); see H.R. Rep. No. 116–252, at 17,
21; S. Rep. No. 116–105, at 3, 11.
5 17 U.S.C. 1507(a)(3); see H.R. Rep. No. 116–252,
at 21–22, 33; S. Rep. No. 116–105, at 14.
6 17 U.S.C. 1506(a)(1).
7 86 FR 16156 (Mar. 26, 2021).
8 86 FR 49273 (Sept. 2, 2021), 86 FR 53897 (Sept.
29, 2021), and 86 FR 69890 (Dec. 8, 2021).
9 86 FR 46119 (Aug. 18, 2021).
PO 00000
Frm 00001
Fmt 4702
Sfmt 4702
II. Proposed Rule
Under the CASE Act, a party before
the CCB may be represented by ‘‘a law
student who is qualified under
applicable law governing representation
by law students of parties in legal
proceedings and who provides such
representation on a pro bono basis.’’ 10
Consistent with Congress’s directive to
develop a system that is accessible to
‘‘those with little prior formal exposure
to copyright laws,’’ 11 the Office is
committed to facilitating law student
representation through law school
clinics, which play an important role in
providing expanded legal access to often
underserved members of the public.12
In response to the NOI, one group of
commenters suggested that the Office
adopt regulations establishing standards
for law student representation, such as
enrollment in good standing at an
American Bar Association (‘‘ABA’’)certified law school, participation in a
law school clinic focused on copyright,
and supervision by an attorney who
takes responsibility for the student’s
work.13 The comments also suggested
that the Office maintain a public
database of participating law school
clinics and include a summary of the
law student representation program’s
activities as part of the Register’s annual
report to Congress.14 The Office has
considered these suggestions as set forth
below.
To assess the ‘‘applicable law’’ that
would govern any law students
appearing before the CCB, the Office
surveyed regulations pertaining to law
student representation in several
10 17
U.S.C. 1506(d)(2).
Rep. No. 116–252, at 17.
12 Ilana Kowarski, How to Gauge the Strength of
Law School Clinics, U.S. News & World Report
(Apr. 12, 2018), https://www.usnews.com/
education/best-graduate-schools/top-law-schools/
articles/2018-04-12/how-to-gauge-the-strength-oflaw-school-clinics (‘‘[A] law school clinic will often
perform significant public service projects, such as
representing indigent legal clients who cannot
afford to pay for legal representation.’’).
13 Copyright Alliance, Am. Photographic Artists,
Am. Soc’y for Collective Rights Licensing, Am.
Soc’y of Media Photographers, The Authors Guild,
CreativeFuture, Digital Media Licensing Ass’n,
Graphic Artists Guild, Indep. Book Pubs. Ass’n,
Music Creators N. Am., Nat’l Music Council of the
United States, Nat’l Press Photographers Ass’n, N.
Am. Nature Photography Ass’n, Prof. Photographers
of Am., Recording Academy, Screen Actors GuildAm. Fed. of Television and Radio Artists, Soc’y of
Composers & Lyricists, Songwriters Guild of Am. &
Songwriters of N. Am. Initial NOI Comments at 43–
45.
14 Id.
11 H.R.
E:\FR\FM\30DEP1.SGM
30DEP1
Federal Register / Vol. 86, No. 248 / Thursday, December 30, 2021 / Proposed Rules
khammond on DSKJM1Z7X2PROD with PROPOSALS
jurisdictions that handle a large volume
of copyright claims or are
geographically close to the Office.
Common eligibility requirements for
students include enrollment at an ABAaccredited law school,15 completion of a
minimum period of legal studies,16
completion of relevant coursework,17
the party’s written consent to the
student’s representation,18 and
certification by the student’s law school
dean.19 These jurisdictions also require
supervision by an attorney, who must be
a member of the bar 20 and generally
must assume professional responsibility
for the student’s activity,21 which
includes assistance with and approval
of the student’s work.22 The Office
believes that some of the provisions
discussed above provide appropriate
guidance and, as discussed in more
detail below, has incorporated many of
these requirements into the proposed
rule. To make law clinic representation
widely available to parties before the
CCB, some of the requirements in the
proposed rule are slightly more lenient
than those imposed by some of the
surveyed states.23 However, under the
15 Cal. R. Ct., R. 9.42(c)(1); Ill. Sup. Ct. R.
711(a)(2); Tenn. Sup. Ct. R. 7, sec. 10.03(c)–(d); D.C.
Ct. App. R. 48(b)(1); Md. R. 19–220(a)(1), (b)(1); Va.
Sup. Ct. R. pt. 6, sec. IV, 15(b)(i)(a).
16 Cal. R. Ct., R. 9.42(c)(1) (one full year); N.Y.
Comp. Codes R. & Regs. tit. 22, sec. 805.5(f) (2017)
(two semesters); Ill. Sup. Ct. R. 711(a)(1) (one-half
of the total hourly credits required for graduation);
Tenn. Sup. Ct. R. 10.03(d)(1) (one-half of the
required curriculum for graduation); D.C. Ct. App.
R. 48(b)(2) (one-third of legal studies); Md. R. 19–
220(c)(1) (one-third of the total credit hours
required to complete the law school program); Va.
Sup. Ct. R. pt. 6, sec. IV, 15(b)(ii)(a) (four
semesters).
17 Cal. R. Ct., R. 9.42(c)(3) (evidence and civil
procedure); Va. Sup. Ct. R. pt. 6, sec. IV, 15(b)(iii)
(criminal law, professional ethics, evidence, and
procedure).
18 N.Y. Comp. Codes R. & Regs. tit. 22, sec.
805.5(c) (2017); Ill. Sup. Ct. R. 711(c); D.C. Ct. App.
R. 48(a)(1); Va. Sup. Ct. R. pt. 6, sec. IV, 15(a)(iii).
19 Ill. Sup. Ct. R. 711(e); Tenn. Sup. Ct. R. 7, sec.
10.03(d); D.C. Ct. App. R. 48(b)(3); Md. R. 19–
220(c); Va. Sup. Ct. R. pt. 6, sec. IV, 15(b)(iii).
20 Cal. R. Ct., R. 9.42(a)(2); N.Y. Comp. Codes R.
& Regs. tit. 22, sec. 805.5(e) (2017); Ill. Sup. Ct. R.
711(c); Tenn. Sup. Ct. R. 7, sec. 10.03(h)(3)(A); D.C.
Ct. App. R. 48(e)(4); Md. R. 19–220(a)(4); Va. Sup.
Ct. R. pt. 6, sec. IV, 15(d)(i).
21 Cal. Rules of State Bar R. 3.6(B)(3); N.Y. Comp.
Codes R. & Regs. tit. 22, sec. 805.5(e) (2017); Tenn.
Sup. Ct. R. 7, sec. 10.03(h)(3)(C); D.C. Ct. App. R.
48(e)(2); Md. R. 19–220(d); Va. Sup. Ct. R. pt. 6, sec.
IV, 15(d)(ii).
22 Cal. Rules of State Bar R. 3.6(B)(5); N.Y. Comp.
Codes R. & Regs. tit. 22, sec. 805.5(e) (2017); Tenn.
Sup. Ct. R. 7, sec. 10.03(g)(2), (h)(3)(C); D.C. Ct.
App. R. 48(e)(3); Md. R. 19–220(d); Va. Sup. Ct. R.
pt. 6, sec. IV, 15(d)(iii).
23 For example, the proposed rule requires that
the name of the supervising attorney appear on all
documents signed by the law student
representative, while some jurisdictions require that
the supervising attorney sign all documents. See,
e.g., Cal. Rules of State Bar R. 3.6(B)(5); Ill. Sup. Ct.
R. 711(c)(2)(ii), (v); Tenn. Sup. Ct. R. 7, sec.
VerDate Sep<11>2014
17:03 Dec 29, 2021
Jkt 256001
proposed rule, law students still must
meet the requirements imposed by the
state in which they are certified, if such
requirements exceed those established
by the proposed rule.
Accordingly, the Office proposes to
create a structure for law student
representation that encourages both
participation by law school clinics and
transparency. The proposed rule
addresses the threshold eligibility
requirements for law students to appear
before the CCB; the expectations for
practice by law students and their
supervising attorneys while
participating in CCB proceedings; and
the creation of a public directory of
clinics that are available to accept
clients appearing before the CCB.
A. Law Student Representation
Eligibility Requirements
The proposed rule permits
representation by qualified law students
affiliated with qualifying law school
clinics. It incorporates the requirements
for law student representation provided
by the law of the jurisdiction that
certifies the student to practice in
connection with a law school clinic.
The law student also must meet an
appropriate standard of competence,24
by completing the first year of law
school study and receiving formal
training in either CCB procedures or
copyright law. Law student
representation before the CCB must be
on a pro bono basis.
The proposed rule also sets forth
additional requirements for the law
student representative and supervising
attorneys during the course of
10.03(g)(2); D.C. Ct. App. R. 48(d)(2). The proposed
rule also only requires the supervising attorney to
accompany the law student representative to
hearings on the merits, barring leave, and does not
require the supervising attorney to accompany the
law student representative to conferences, though
some jurisdictions require the supervising attorney
to accompany the law student representative to a
broader range of appearances before a tribunal. See,
e.g., Cal. R. Ct., R. 9.42(d)(2), (3) (requiring
supervising attorney’s presence at depositions and
hearings); N.Y. Comp. Codes R. & Regs. tit. 22, sec.
805.5(b)(2), (3), (5), (6) (2017) (requiring supervising
attorney’s presence at appearances pertaining to
criminal matters and to family and other contested
civil actions); Tenn. Sup. Ct. R. 7, sec. 10.03(h)(2)
(requiring supervising attorney’s presence at
administrative and adjudicatory proceedings); D.C.
Ct. App. R. 48(d)(1), (3) (requiring supervising
attorney’s presence at appearances before tribunals
and at oral arguments, except that the eligible
student may appear before the tribunal without the
supervising attorney’s presence if the matter is not
contested and with the tribunal’s consent); Va. Sup.
Ct. R. pt. 6, sec. IV, 15(a)(i) (requiring supervising
attorney’s presence at appearance before courts or
administrative tribunals).
24 Model Rules of Prof’l Conduct R. 1.1 (Am. Bar
Ass’n 1983) (‘‘Competent representation requires
the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the
representation [of a client].’’).
PO 00000
Frm 00002
Fmt 4702
Sfmt 4702
74395
representation before the CCB. Many of
these provisions are based on the
findings of the state law survey,
including that clients must consent in
writing to the law student’s
representation and that law student
representatives must be supervised by
an attorney. Under the proposed rule,
supervising attorneys are responsible for
confirming law student representatives’
eligibility under applicable law and
CCB regulations. Supervising attorneys
are also responsible for overall case
management, including ensuring that
there is continuity of representation in
any active proceedings during law
school term transitions.
The proposed rule requires that both
the law student representative and the
supervising attorney file notices of
appearance in the case (and notices of
withdrawal, including if the identity of
either the law student representative or
the supervising attorney changes during
the course of a proceeding). Law student
representatives may not file documents
with the CCB without the supervising
attorney’s knowledge, and the
supervising attorney must maintain an
account in the CCB’s electronic file
management system to track the law
student representative’s filings. Any
document signed by the law student
representative must include the name of
the supervising attorney, and the
supervising attorney must accompany
the law student representative to
hearings on the merits, unless the CCB
grants leave for the law student
representative to appear without the
supervising attorney. The proposed rule
does not require the supervising
attorney to accompany the law student
representative to conferences.
Under the proposed rule, both
supervising attorneys and law student
representatives are bound by the CCB’s
standards of conduct governing parties
and their representatives. The
supervising attorney has responsibility
for the law student representative’s
actions, and the CCB may hold the
supervising attorney responsible for the
law student representative’s activity.
The Office invites comments on
whether the proposed regulations strike
a proper balance between ensuring that
law student representatives are properly
qualified and supervised and
minimizing burdens on supervising
attorneys or clinics, which could
diminish the availability of clinical
representation for parties in CCB
proceedings. The Office is particularly
interested in any comments concerning
whether a law student should have a
minimum amount of formal training in
copyright law or in appearing before the
CCB; whether supervising attorneys
E:\FR\FM\30DEP1.SGM
30DEP1
74396
Federal Register / Vol. 86, No. 248 / Thursday, December 30, 2021 / Proposed Rules
khammond on DSKJM1Z7X2PROD with PROPOSALS
should be required to appear at hearings
on the merits; whether the supervising
attorney’s appearance should also be
required at conferences; and whether
documents submitted to the CCB must
be signed by both the supervising
attorney and the law student
representative.
B. Law School Clinic Directory
The proposed rule provides for the
creation of a public directory of law
school clinics actively accepting clients
for CCB representation. The Office
anticipates that there will be a large
number of pro se (i.e., self-represented)
participants in CCB proceedings who
are appearing before an adjudicatory
body for the first time. While the goal
of the CCB is to provide streamlined,
easy-to-understand proceedings, such
that parties may appear without an
attorney,25 the Office wants to ensure
that participants have as much access to
available resources and legal support as
possible. To that end, the proposed rule
provides the opportunity for law school
clinics to self-identify when they are
available to represent clients before the
CCB. The directory will include contact
information for, and the geographic
availability of, the clinic; the nature of
the clinic’s experience with copyright
and litigation matters; and a description
of the clinic’s interest in handling CCB
matters. Requiring this information for
directory inclusion is intended to
provide participants the means of
making an informed decision regarding
possible law student representation. The
Office will make this information
publicly available on the condition that
the clinic certifies that its students are
eligible to practice before the CCB and
provides the required information to
assist a participant in evaluating
whether representation is available and
appropriate. Clinics will have a duty to
keep their information up to date, and
a listing may be removed at the CCB’s
discretion.
The CASE Act’s legislative history
suggests that the Office look to the U.S.
Patent and Trademark Office’s Law
School Clinic Certification Program
(‘‘USPTO Program’’) when considering
how to encourage law student
representation before the CCB.26 The
USPTO Program consists of a complex
multi-year process that requires an
application by an interested law school
clinic, review and acceptance into the
program, USPTO monitoring over a
25 17 U.S.C. 1506(d) (noting that parties may be
represented, but representation is not required); see
H.R. Rep. No. 116–252, at 17 (‘‘Parties may appear
pro se.’’); S. Rep. No. 116–105 at 4 (noting that
‘‘parties may wish to proceed pro se’’).
26 S. Rep. No. 116–105 at 4.
VerDate Sep<11>2014
17:03 Dec 29, 2021
Jkt 256001
training year, and reporting and renewal
requirements.27 The USPTO Program
has grown since it was established in
2008, and now over sixty clinics in
approximately thirty states are certified
to have law students appear before the
USPTO.28 The program is run by five
designated legal staff members within
the USPTO’s Office of Enrollment and
Discipline.29 The majority of the clinics
in the USPTO Program represent
applicants seeking patent or trademark
registrations, and not parties involved in
proceedings before the Patent Trial and
Appeal Board or Trademark Trial and
Appeal Board. Given the fact that
practice before the CCB does not require
the same type of technical expertise, the
Office has adopted those aspects of the
USPTO Program that are appropriate for
the CCB. In light of the CCB’s overall
obligations in commencing operations,
the Office has proposed a program
which is feasible in light of its currently
available resources. In the interest of
making pro bono resources widely
known and easily accessible, the Office
proposes gathering information similar
to information acquired through the
USPTO Program 30 and making it
publicly available for participants to
review and assess. The Office believes
that the proposed requirements would
allow new clinics located in areas where
there are fewer legal resources to
participate in the CCB’s program, and
would allow clinics to be available to
represent clients soon after the start of
CCB operations. The rule proposed by
the Office requires law school clinic
directors to certify that the clinic meets
all legal obligations under applicable
state law prior to inclusion in the public
directory. The Office believes that the
training in copyright law or practice
before the CCB that is required in the
regulations will be most valuable to the
27 See generally U.S. Patent and Trademark
Office, Law School Application Packet 2020–2022
Expansion, https://www.uspto.gov/sites/default/
files/documents/2020-2022-Law_School_
Application_Packet-May-2021.pdf (‘‘USPTO
Application’’) (last visited Dec. 10, 2021).
28 U.S. Patent and Trademark Office, USPTO Law
School Clinic Certification Program, https://
www.uspto.gov/sites/default/files/documents/
USPTO_Law_School_Clinic_Certification_Program_
Participating_School_Map-Oct2020.pdf (last visited
Dec. 10, 2021).
29 U.S. Patent and Trademark Office, Law School
Clinic Certification Program, https://
www.uspto.gov/learning-and-resources/ip-policy/
public-information-about-practitioners/law-schoolclinic-1 (identifying five staff attorneys assigned to
the Law School Clinic Program) (last visited Dec.
10, 2021).
30 See, e.g., USPTO Application at 22–25
(requesting information about experience handling
trademark and patent matters and requiring law
school clinics and supervising attorneys to
undertake various responsibilities regarding the law
students they supervise).
PO 00000
Frm 00003
Fmt 4702
Sfmt 4702
participating law students. After the
CCB has become further established, the
Office will reconsider whether more
robust requirements should be imposed
for law clinic certification.
The Office seeks comments on
whether the directory as proposed is
sufficient to allow participants to make
an informed decision regarding whether
and where to seek clinic representation.
The Office also seeks comments
regarding appropriate outreach
strategies for encouraging law school
clinic participation.
C. Representation of Business Entities
Finally, the proposed rule addresses
the issue of who will be authorized to
represent business entities, which
include corporations, limited liability
companies, partnerships, and sole
proprietorships, before the CCB, and
what kind of representation is required.
Longstanding practice in federal court
requires that a business entities appear
with representation of counsel.31 Other
jurisdictions, however, provide greater
flexibility, particularly in the small
claims context. In the Small Claims and
Conciliation Branch of the Civil
Division of the Superior Court of the
District of Columbia, for instance, a
corporation may appear as a plaintiff
only when represented by counsel, but
as a defendant, it may be represented by
an authorized officer, director, or
employee.32 In Virginia small claims
court, a corporation or partnership may
be represented by an officer or an
employee of that entity. In fact, it may
be represented by an attorney only
when the attorney is entering an
appearance to remove a case to general
district court.33 In contrast, when
appearing in a Virginia general district
court, a corporation must be represented
by an attorney, unless the amount in
controversy is $2500 or less, the party
is a private corporation whose stock is
held by no more than five persons, and
all stockholders consent to an officer
providing representation.34 In
Maryland, an officer, designated
employee, partner, or member of a
limited liability company may appear
31 Rowland v. California Men’s Colony, Unit II
Men’s Advisory Council, 506 U.S. 194, 201–02
(1993) (‘‘It has been the law for the better part of
two centuries, for example, that a corporation may
appear in the federal courts only through licensed
counsel.’’).
32 D.C. Sup. Ct. Small Cl. R. 9(b); D.C. Ct. App.
R. 49(c)(11).
33 Va. Code Ann. 16.1–122.4 (2021). An attorney
may represent a corporate or partnership plaintiff
or defendant, but only if they are appearing pro se
and not in a representative capacity. Id. at 16.1–
122.4(A)(1).
34 Id. at 16.1–81.1; see id. at 16.1–88.3 (generally
prohibiting non-attorneys from litigating cases in
Virginia courts).
E:\FR\FM\30DEP1.SGM
30DEP1
Federal Register / Vol. 86, No. 248 / Thursday, December 30, 2021 / Proposed Rules
on behalf of the entity in the District
Court of Maryland, so long as the action
is a small claims action and is not based
on an assignment to the entity of the
claim of another.35
Given the small claims nature of the
CCB and the interest in facilitating
participation before it, the proposed rule
resembles the practices in some state
small claims courts rather than the
federal system. A business entity may be
represented by an attorney, fiduciary, or
authorized employee in a CCB
proceeding. Representatives must certify
that they are authorized to represent and
bind the entity; if the representative is
an employee, the employee must also
submit written proof of that
authorization. The Office welcomes
comments on this proposed framework.
List of Subjects
37 CFR Part 201
Copyright, General provisions.
37 CFR Part 232 and 234
Claims, Copyright.
Proposed Regulations
For the reasons stated in the
preamble, the U.S. Copyright Office
proposes to amend Chapter II,
Subchapters A and B, of title 37 Code
of Federal Regulations, as proposed to
be amended at 86 FR 69890 (December
8, 2021), as follows:
SUBCHAPTER A—COPYRIGHT OFFICE
AND PROCEDURES
PART 201—GENERAL PROVISIONS
1. The authority citation for part 201
continues to read as follows:
■
Authority: 17 U.S.C. 702.
Section 201.10 also issued under 17 U.S.C.
304.
2. In § 201.2, revise paragraph (a)(2) to
read as follows:
■
khammond on DSKJM1Z7X2PROD with PROPOSALS
§ 201.2
Office.
Information given by the Copyright
(a) * * *
(2) The Copyright Office does not
furnish the names of copyright
attorneys, publishers, agents, or other
similar information to the public, except
that it may provide a directory of pro
bono representation available to
participants in proceedings before the
Copyright Claims Board.
*
*
*
*
*
35 Md. Code Ann., Bus. Occ. & Prof. 10–206(b)(4)
(2021).
VerDate Sep<11>2014
17:03 Dec 29, 2021
Jkt 256001
SUBCHAPTER B—COPYRIGHT CLAIMS
BOARD AND PROCEDURES
PART 232—CONDUCT OF PARTIES
3. The authority citation for part 232
continues to read as follows:
■
Authority: 17 U.S.C. 702, 1510.
■
*
4. Add § 232.6 to read as follows:
*
*
*
*
§ 232.6 Representation of business
entities.
(a) Definition. For the purpose of this
section, a business entity is a
corporation, limited liability company,
partnership, sole proprietorship, or
unincorporated association.
(b) Appearance of a business entity. A
business entity may appear before the
Copyright Claims Board (‘‘Board’’)
through: (1) A member in good standing
of the bar of the highest court of a State,
the District of Columbia, or any territory
or commonwealth of the United States;
(2) A law student who meets the
requirements set forth in 37 CFR 234.1;
(3) An owner, partner, officer, or
member of the business entity; or
(4) An authorized employee.
(c) Certification. Someone appearing
before the Board to represent a business
entity pursuant to paragraphs (b)(3) or
(4) of this section shall certify that they
are an authorized agent of the business
entity and may bind that entity in
matters pending before the Board. If the
representative qualifies only as an
authorized employee under paragraph
(b)(4) of this section, then within 30
days of the authorized employee’s
initial appearance, the representative
also must submit written authorization,
signed by an owner, partner, officer, or
member of the business entity under
penalty of perjury, stating that the
representative may bind that entity on
matters pending before the Board.
(d) Subject to standards of
professional conduct. Representatives of
business entities who appear pursuant
to paragraphs (b)(3) or (4) of this section
are equally subject to the standards of
conduct set forth in 37 CFR 232.1 as any
other party representative.
■ 5. Part 234 is added to read as follows:
PART 234—LAW STUDENT
REPRESENTATIVES
Sec.
234.1
234.2
Law student representatives.
Law school clinic directory.
Authority: 17 U.S.C. 702, 1510.
§ 234.1
Law student representatives.
(a) Eligibility for appearance. (1) State
law compliance. Any law student who
is affiliated with a law school clinic, is
qualified under applicable laws
PO 00000
Frm 00004
Fmt 4702
Sfmt 4702
74397
governing representation by law
students of parties in legal proceedings,
and meets the other requirements of this
paragraph may appear before the
Copyright Claims Board (‘‘Board’’).
Applicable law is the law of the
jurisdiction that certifies the student to
practice law in conjunction with a law
school clinic.
(2) Pro bono representation. Any law
student who appears before the Board
must provide representation on a pro
bono basis.
(3) Competency. Law student
representatives must meet a standard of
competency. For the purpose of
appearances before the Board,
competency includes successful
completion of:
(i) The first year of studies at an
American Bar Association-accredited
law school; and
(ii) A copyright law course, formal
copyright law training, or formal
training in Board procedures.
(b) Client consent. The law student
representative shall have the written
consent of the client for the law student
to appear on that client’s behalf.
(c) Attorney supervision. A law
student who represents a party in a
proceeding before the Board shall be
supervised by an attorney who is
qualified under applicable law
governing representation by law
students, as specified in paragraph (a) of
this section. In supervising the law
student, the attorney shall adhere to the
requirements of 37 CFR 232.5.
(d) Confirmation of eligibility. In
accordance with the standards of
professional conduct set forth in
paragraph (j) of this section, the attorney
supervising the work of the law student
representative is responsible for
confirming the law student’s eligibility
to appear before the Board as set forth
in paragraph (a) of this section.
(e) Identification of supervising
attorney in documents. The name of the
supervising attorney shall appear on all
documents signed by the law student
representative.
(f) Notice of appearance. In any
proceeding in which a law student
represents a party, a notice of
appearance shall be filed pursuant to 37
CFR 232.5(a) identifying both the law
student representative and the
supervising attorney.
(g) Filing documents. All filings by a
law student representative shall be
made with the knowledge of the
supervising attorney, who shall
maintain an association with the law
student representative in the electronic
filing system. The supervising attorney
shall maintain their own account, in
addition to the law student’s account, in
E:\FR\FM\30DEP1.SGM
30DEP1
74398
Federal Register / Vol. 86, No. 248 / Thursday, December 30, 2021 / Proposed Rules
the electronic filing system to track law
student filings. A notice of withdrawal
shall be filed whenever the identity of
a law student representative or a
supervising attorney has changed.
(h) Appearance at hearings. The
supervising attorney shall accompany
the law student representative to
hearings held in accordance with 37
CFR 222.15, absent leave of the Board
for the law student to appear without
the presence of the supervising attorney.
(i) Responsibility for continuity of
case management. The supervising
attorney shall be responsible for all
aspects of case management, including
appearances and withdrawals, as well as
continuity of representation during law
school term transitions.
(j) Applicability of rules of
professional conduct. Law student
representatives are equally subject to the
standards of conduct set forth in 37 CFR
232.5 as any other attorney
representatives. The supervising
attorney has professional responsibility
for the actions of the law student
representative. The Board may hold
supervisory attorneys responsible for
law student representative activity.
khammond on DSKJM1Z7X2PROD with PROPOSALS
§ 234.2
Law school clinic directory.
(a) Publicly available directory. The
Board shall make a directory available
on its website of law school clinics that
have advised the Board that they are
available, on a pro bono basis, to
represent clients in proceedings before
the Board.
(b) Form for inclusion. To be included
in the public directory, the law school
clinic director shall submit a form
providing the following information for
public dissemination:
(1) The name of the participating law
school;
(2) The name of the participating
clinic;
(3) The name of the director of the
clinic;
(4) A general contact email address
and phone number;
(5) The geographic area from which
the clinic may accept clients;
(6) Whether the clinic has handled
copyright matters in the past two years;
(7) The nature of any copyright
matters handled by the clinic in the past
two years;
(8) Whether the clinic has experience
in handling litigation matters;
(9) If the clinic does not have
litigation experience, whether the clinic
has a partnership with a litigation
clinic;
(10) A brief statement describing the
clinic’s interest in handling matters
before the Board; and
(11) A certification that student
representatives participating in the
VerDate Sep<11>2014
17:03 Dec 29, 2021
Jkt 256001
clinic will meet all requirements of 37
CFR 234.1(a).
(c) Standards for inclusion. Subject to
paragraph (d) of this section, the Board
will accept for inclusion in the public
directory any law school clinic that
certifies that its law student
representatives will meet all
requirements of 37 CFR 234.1(a) and
provides sufficient information
pursuant to paragraph (b) of this section
for participants in Board proceedings to
evaluate whether representation is
available and appropriate.
(d) Removal from directory. The
Board may, in its discretion, remove a
clinic from the directory if it determines
that the clinic is not suitable for
representing clients before the Board,
including, without limitation, if it
determines that the clinic has failed to
properly update its information in the
public directory.
(e) Duty to update directory.
Participating clinics have a duty to
maintain current information in the
directory and shall confirm the currency
of the information on an annual basis.
Dated: December 22, 2021.
Kimberley Isbell,
Acting General Counsel and Associate
Register of Copyrights.
[FR Doc. 2021–28154 Filed 12–29–21; 8:45 am]
BILLING CODE 1410–30–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 87, 1030, and 1031
[EPA–HQ–OAR–2019–0660; FRL–9354–01
OAR]
RIN 2060–AU69
Public Hearing for Control of Air
Pollution From Aircraft Engines:
Emission Standards and Test
Procedures
Environmental Protection
Agency (EPA).
ACTION: Proposed rule; public hearing.
AGENCY:
The Environmental Protection
Agency (EPA) is announcing a virtual
public hearing to be held on January 20,
2022, on its proposed rulemaking for
particulate matter (PM) emission
standards for aircraft engines, which
was signed on December 17, 2021.
DATES: EPA will hold a virtual public
hearing on January 20, 2022. The
hearing will begin at 10 a.m. Eastern
Time (ET) and end when all parties who
wish to speak have had an opportunity
to do so. Please refer to the
SUPPLEMENTARY INFORMATION section for
SUMMARY:
PO 00000
Frm 00005
Fmt 4702
Sfmt 4702
additional information on the public
hearing.
ADDRESSES: The public hearing will be
held virtually. Additional information
regarding the hearing appears below
under the SUPPLEMENTARY INFORMATION.
FOR FURTHER INFORMATION CONTACT:
Bryan Manning, Office of
Transportation and Air Quality,
Assessment and Standards Division,
Environmental Protection Agency, 2000
Traverwood Drive, Ann Arbor, MI
48105; telephone number: 734–214–
4832; email address: manning.bryan@
epa.gov.
SUPPLEMENTARY INFORMATION: The
Environmental Protection Agency (EPA)
is proposing PM emission standards and
test procedures applicable to certain
classes of engines used by civil subsonic
jet airplanes (those engines with rated
output of greater than 26.7 kilonewtons
(kN)). These proposed standards and
test procedures are equivalent to the
aircraft engine standards adopted by the
United Nations’ International Civil
Aviation Organization (ICAO) in 2017
and 2020. The proposed rulemaking was
signed on December 17, 2021, and it
will be published separately in the
Federal Register. The pre-publication
version is available at https://
www.epa.gov/regulations-emissionsvehicles-and-engines/proposed-rulecontrol-air-pollution-aircraft-engines.
Participation in virtual public
hearing. Please note that EPA is
deviating from its typical approach
because the President has declared a
national emergency. Because of current
recommendations from the Centers for
Disease Control and Prevention (CDC),
as well as state and local orders for
social distancing to limit the spread of
COVID–19, EPA cannot hold in-person
public meetings at this time.
EPA is also asking all hearing
attendees to register for the hearing,
even those who do not intend to provide
testimony, by January 18, 2022.
Information on how to register for the
hearing can be found at https://
www.epa.gov/regulations-emissionsvehicles-and-engines/proposed-rulecontrol-air-pollution-aircraft-engines.
For those without internet access,
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to
register.
The last day to pre-register to speak at
the hearing will be January 18, 2022.
The virtual public hearing will provide
interested parties the opportunity to
present data, views, or arguments
concerning the proposal (the official
version of which was signed on
December 17, 2021 and a copy of which
is available at https://www.epa.gov/
E:\FR\FM\30DEP1.SGM
30DEP1
]]>Agencies
[Federal Register Volume 86, Number 248 (Thursday, December 30, 2021)]
[Proposed Rules]
[Pages 74394-74398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28154]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 86, No. 248 / Thursday, December 30, 2021 /
Proposed Rules
[[Page 74394]]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
37 CFR Parts 201, 232, and 234
[Docket No. 2021-9]
Copyright Claims Board: Representation by Law Students and of
Business Entities
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The U.S. Copyright Office is issuing a notice of proposed
rulemaking to establish procedures governing the appearance of law
student representatives and employees of business entities in
proceedings before the Copyright Claims Board.
DATES: Initial written comments must be received no later than 11:59
p.m. EDT on February 3, 2022. Written reply comments must be received
no later than 11:59 p.m. EDT on February 18, 2022.
ADDRESSES: For reasons of Government efficiency, the Copyright Office
is using the Regulations.gov system for the submission and posting of
public comments in this proceeding. All comments are therefore to be
submitted electronically through regulations.gov. Specific instructions
for submitting comments are available on the Copyright Office website
at https://copyright.gov/rulemaking/case-act-implementation/representation/. If electronic submission of comments is not feasible
due to lack of access to a computer or the internet, please contact the
Office using the contact information below for special instructions.
FOR FURTHER INFORMATION CONTACT: Megan Efthimiadis, Assistant to the
General Counsel, by email at [email protected], or by telephone at
202-707-8350.
SUPPLEMENTARY INFORMATION:
I. Background
On December 27, 2020, the President signed into law the Copyright
Alternative in Small-Claims Enforcement (``CASE'') Act of 2020.\1\ The
CASE Act directs the Copyright Office to establish the Copyright Claims
Board (``CCB''), an alternative forum to federal court in which parties
may seek resolution of copyright disputes that are capped at a lower
economic value.\2\ The CCB has authority to hear copyright infringement
claims, claims seeking a declaration of non-infringement, and
misrepresentation claims under section 512(f) of title 17.\3\
Participation in the CCB is voluntary for all parties,\4\ and all
determinations are non-precedential.\5\
---------------------------------------------------------------------------
\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 1-3 (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).
\3\ 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).
\4\ Id. at 1504(a); see H.R. Rep. No. 116-252, at 17, 21; S.
Rep. No. 116-105, at 3, 11.
\5\ 17 U.S.C. 1507(a)(3); see H.R. Rep. No. 116-252, at 21-22,
33; S. Rep. No. 116-105, at 14.
---------------------------------------------------------------------------
The CASE Act directs the Register of Copyrights to establish the
regulations by which the CCB will conduct its proceedings, subject to
the provisions of chapter 15 and relevant principles of law under title
17.\6\ The Office has issued a notification of inquiry (``NOI''),\7\
three notices of proposed rulemaking (``NPRMs''),\8\ and one final rule
\9\ related to CCB procedures. In this notice of proposed rulemaking,
the Office proposes procedures governing qualified law students who
represent parties in CCB proceedings and procedures governing
representation of corporations, limited liability companies,
partnerships, sole proprietorships, or other unincorporated
associations (collectively, ``business entities'').
---------------------------------------------------------------------------
\6\ 17 U.S.C. 1506(a)(1).
\7\ 86 FR 16156 (Mar. 26, 2021).
\8\ 86 FR 49273 (Sept. 2, 2021), 86 FR 53897 (Sept. 29, 2021),
and 86 FR 69890 (Dec. 8, 2021).
\9\ 86 FR 46119 (Aug. 18, 2021).
---------------------------------------------------------------------------
II. Proposed Rule
Under the CASE Act, a party before the CCB may be represented by
``a law student who is qualified under applicable law governing
representation by law students of parties in legal proceedings and who
provides such representation on a pro bono basis.'' \10\ Consistent
with Congress's directive to develop a system that is accessible to
``those with little prior formal exposure to copyright laws,'' \11\ the
Office is committed to facilitating law student representation through
law school clinics, which play an important role in providing expanded
legal access to often underserved members of the public.\12\
---------------------------------------------------------------------------
\10\ 17 U.S.C. 1506(d)(2).
\11\ H.R. Rep. No. 116-252, at 17.
\12\ Ilana Kowarski, How to Gauge the Strength of Law School
Clinics, U.S. News & World Report (Apr. 12, 2018), https://www.usnews.com/education/best-graduate-schools/top-law-schools/articles/2018-04-12/how-to-gauge-the-strength-of-law-school-clinics
(``[A] law school clinic will often perform significant public
service projects, such as representing indigent legal clients who
cannot afford to pay for legal representation.'').
---------------------------------------------------------------------------
In response to the NOI, one group of commenters suggested that the
Office adopt regulations establishing standards for law student
representation, such as enrollment in good standing at an American Bar
Association (``ABA'')-certified law school, participation in a law
school clinic focused on copyright, and supervision by an attorney who
takes responsibility for the student's work.\13\ The comments also
suggested that the Office maintain a public database of participating
law school clinics and include a summary of the law student
representation program's activities as part of the Register's annual
report to Congress.\14\ The Office has considered these suggestions as
set forth below.
---------------------------------------------------------------------------
\13\ Copyright Alliance, Am. Photographic Artists, Am. Soc'y for
Collective Rights Licensing, Am. Soc'y of Media Photographers, The
Authors Guild, CreativeFuture, Digital Media Licensing Ass'n,
Graphic Artists Guild, Indep. Book Pubs. Ass'n, Music Creators N.
Am., Nat'l Music Council of the United States, Nat'l Press
Photographers Ass'n, N. Am. Nature Photography Ass'n, Prof.
Photographers of Am., Recording Academy, Screen Actors Guild-Am.
Fed. of Television and Radio Artists, Soc'y of Composers &
Lyricists, Songwriters Guild of Am. & Songwriters of N. Am. Initial
NOI Comments at 43-45.
\14\ Id.
---------------------------------------------------------------------------
To assess the ``applicable law'' that would govern any law students
appearing before the CCB, the Office surveyed regulations pertaining to
law student representation in several
[[Page 74395]]
jurisdictions that handle a large volume of copyright claims or are
geographically close to the Office. Common eligibility requirements for
students include enrollment at an ABA-accredited law school,\15\
completion of a minimum period of legal studies,\16\ completion of
relevant coursework,\17\ the party's written consent to the student's
representation,\18\ and certification by the student's law school
dean.\19\ These jurisdictions also require supervision by an attorney,
who must be a member of the bar \20\ and generally must assume
professional responsibility for the student's activity,\21\ which
includes assistance with and approval of the student's work.\22\ The
Office believes that some of the provisions discussed above provide
appropriate guidance and, as discussed in more detail below, has
incorporated many of these requirements into the proposed rule. To make
law clinic representation widely available to parties before the CCB,
some of the requirements in the proposed rule are slightly more lenient
than those imposed by some of the surveyed states.\23\ However, under
the proposed rule, law students still must meet the requirements
imposed by the state in which they are certified, if such requirements
exceed those established by the proposed rule.
---------------------------------------------------------------------------
\15\ Cal. R. Ct., R. 9.42(c)(1); Ill. Sup. Ct. R. 711(a)(2);
Tenn. Sup. Ct. R. 7, sec. 10.03(c)-(d); D.C. Ct. App. R. 48(b)(1);
Md. R. 19-220(a)(1), (b)(1); Va. Sup. Ct. R. pt. 6, sec. IV,
15(b)(i)(a).
\16\ Cal. R. Ct., R. 9.42(c)(1) (one full year); N.Y. Comp.
Codes R. & Regs. tit. 22, sec. 805.5(f) (2017) (two semesters); Ill.
Sup. Ct. R. 711(a)(1) (one-half of the total hourly credits required
for graduation); Tenn. Sup. Ct. R. 10.03(d)(1) (one-half of the
required curriculum for graduation); D.C. Ct. App. R. 48(b)(2) (one-
third of legal studies); Md. R. 19-220(c)(1) (one-third of the total
credit hours required to complete the law school program); Va. Sup.
Ct. R. pt. 6, sec. IV, 15(b)(ii)(a) (four semesters).
\17\ Cal. R. Ct., R. 9.42(c)(3) (evidence and civil procedure);
Va. Sup. Ct. R. pt. 6, sec. IV, 15(b)(iii) (criminal law,
professional ethics, evidence, and procedure).
\18\ N.Y. Comp. Codes R. & Regs. tit. 22, sec. 805.5(c) (2017);
Ill. Sup. Ct. R. 711(c); D.C. Ct. App. R. 48(a)(1); Va. Sup. Ct. R.
pt. 6, sec. IV, 15(a)(iii).
\19\ Ill. Sup. Ct. R. 711(e); Tenn. Sup. Ct. R. 7, sec.
10.03(d); D.C. Ct. App. R. 48(b)(3); Md. R. 19-220(c); Va. Sup. Ct.
R. pt. 6, sec. IV, 15(b)(iii).
\20\ Cal. R. Ct., R. 9.42(a)(2); N.Y. Comp. Codes R. & Regs.
tit. 22, sec. 805.5(e) (2017); Ill. Sup. Ct. R. 711(c); Tenn. Sup.
Ct. R. 7, sec. 10.03(h)(3)(A); D.C. Ct. App. R. 48(e)(4); Md. R. 19-
220(a)(4); Va. Sup. Ct. R. pt. 6, sec. IV, 15(d)(i).
\21\ Cal. Rules of State Bar R. 3.6(B)(3); N.Y. Comp. Codes R. &
Regs. tit. 22, sec. 805.5(e) (2017); Tenn. Sup. Ct. R. 7, sec.
10.03(h)(3)(C); D.C. Ct. App. R. 48(e)(2); Md. R. 19-220(d); Va.
Sup. Ct. R. pt. 6, sec. IV, 15(d)(ii).
\22\ Cal. Rules of State Bar R. 3.6(B)(5); N.Y. Comp. Codes R. &
Regs. tit. 22, sec. 805.5(e) (2017); Tenn. Sup. Ct. R. 7, sec.
10.03(g)(2), (h)(3)(C); D.C. Ct. App. R. 48(e)(3); Md. R. 19-220(d);
Va. Sup. Ct. R. pt. 6, sec. IV, 15(d)(iii).
\23\ For example, the proposed rule requires that the name of
the supervising attorney appear on all documents signed by the law
student representative, while some jurisdictions require that the
supervising attorney sign all documents. See, e.g., Cal. Rules of
State Bar R. 3.6(B)(5); Ill. Sup. Ct. R. 711(c)(2)(ii), (v); Tenn.
Sup. Ct. R. 7, sec. 10.03(g)(2); D.C. Ct. App. R. 48(d)(2). The
proposed rule also only requires the supervising attorney to
accompany the law student representative to hearings on the merits,
barring leave, and does not require the supervising attorney to
accompany the law student representative to conferences, though some
jurisdictions require the supervising attorney to accompany the law
student representative to a broader range of appearances before a
tribunal. See, e.g., Cal. R. Ct., R. 9.42(d)(2), (3) (requiring
supervising attorney's presence at depositions and hearings); N.Y.
Comp. Codes R. & Regs. tit. 22, sec. 805.5(b)(2), (3), (5), (6)
(2017) (requiring supervising attorney's presence at appearances
pertaining to criminal matters and to family and other contested
civil actions); Tenn. Sup. Ct. R. 7, sec. 10.03(h)(2) (requiring
supervising attorney's presence at administrative and adjudicatory
proceedings); D.C. Ct. App. R. 48(d)(1), (3) (requiring supervising
attorney's presence at appearances before tribunals and at oral
arguments, except that the eligible student may appear before the
tribunal without the supervising attorney's presence if the matter
is not contested and with the tribunal's consent); Va. Sup. Ct. R.
pt. 6, sec. IV, 15(a)(i) (requiring supervising attorney's presence
at appearance before courts or administrative tribunals).
---------------------------------------------------------------------------
Accordingly, the Office proposes to create a structure for law
student representation that encourages both participation by law school
clinics and transparency. The proposed rule addresses the threshold
eligibility requirements for law students to appear before the CCB; the
expectations for practice by law students and their supervising
attorneys while participating in CCB proceedings; and the creation of a
public directory of clinics that are available to accept clients
appearing before the CCB.
A. Law Student Representation Eligibility Requirements
The proposed rule permits representation by qualified law students
affiliated with qualifying law school clinics. It incorporates the
requirements for law student representation provided by the law of the
jurisdiction that certifies the student to practice in connection with
a law school clinic. The law student also must meet an appropriate
standard of competence,\24\ by completing the first year of law school
study and receiving formal training in either CCB procedures or
copyright law. Law student representation before the CCB must be on a
pro bono basis.
---------------------------------------------------------------------------
\24\ Model Rules of Prof'l Conduct R. 1.1 (Am. Bar Ass'n 1983)
(``Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the
representation [of a client].'').
---------------------------------------------------------------------------
The proposed rule also sets forth additional requirements for the
law student representative and supervising attorneys during the course
of representation before the CCB. Many of these provisions are based on
the findings of the state law survey, including that clients must
consent in writing to the law student's representation and that law
student representatives must be supervised by an attorney. Under the
proposed rule, supervising attorneys are responsible for confirming law
student representatives' eligibility under applicable law and CCB
regulations. Supervising attorneys are also responsible for overall
case management, including ensuring that there is continuity of
representation in any active proceedings during law school term
transitions.
The proposed rule requires that both the law student representative
and the supervising attorney file notices of appearance in the case
(and notices of withdrawal, including if the identity of either the law
student representative or the supervising attorney changes during the
course of a proceeding). Law student representatives may not file
documents with the CCB without the supervising attorney's knowledge,
and the supervising attorney must maintain an account in the CCB's
electronic file management system to track the law student
representative's filings. Any document signed by the law student
representative must include the name of the supervising attorney, and
the supervising attorney must accompany the law student representative
to hearings on the merits, unless the CCB grants leave for the law
student representative to appear without the supervising attorney. The
proposed rule does not require the supervising attorney to accompany
the law student representative to conferences.
Under the proposed rule, both supervising attorneys and law student
representatives are bound by the CCB's standards of conduct governing
parties and their representatives. The supervising attorney has
responsibility for the law student representative's actions, and the
CCB may hold the supervising attorney responsible for the law student
representative's activity.
The Office invites comments on whether the proposed regulations
strike a proper balance between ensuring that law student
representatives are properly qualified and supervised and minimizing
burdens on supervising attorneys or clinics, which could diminish the
availability of clinical representation for parties in CCB proceedings.
The Office is particularly interested in any comments concerning
whether a law student should have a minimum amount of formal training
in copyright law or in appearing before the CCB; whether supervising
attorneys
[[Page 74396]]
should be required to appear at hearings on the merits; whether the
supervising attorney's appearance should also be required at
conferences; and whether documents submitted to the CCB must be signed
by both the supervising attorney and the law student representative.
B. Law School Clinic Directory
The proposed rule provides for the creation of a public directory
of law school clinics actively accepting clients for CCB
representation. The Office anticipates that there will be a large
number of pro se (i.e., self-represented) participants in CCB
proceedings who are appearing before an adjudicatory body for the first
time. While the goal of the CCB is to provide streamlined, easy-to-
understand proceedings, such that parties may appear without an
attorney,\25\ the Office wants to ensure that participants have as much
access to available resources and legal support as possible. To that
end, the proposed rule provides the opportunity for law school clinics
to self-identify when they are available to represent clients before
the CCB. The directory will include contact information for, and the
geographic availability of, the clinic; the nature of the clinic's
experience with copyright and litigation matters; and a description of
the clinic's interest in handling CCB matters. Requiring this
information for directory inclusion is intended to provide participants
the means of making an informed decision regarding possible law student
representation. The Office will make this information publicly
available on the condition that the clinic certifies that its students
are eligible to practice before the CCB and provides the required
information to assist a participant in evaluating whether
representation is available and appropriate. Clinics will have a duty
to keep their information up to date, and a listing may be removed at
the CCB's discretion.
---------------------------------------------------------------------------
\25\ 17 U.S.C. 1506(d) (noting that parties may be represented,
but representation is not required); see H.R. Rep. No. 116-252, at
17 (``Parties may appear pro se.''); S. Rep. No. 116-105 at 4
(noting that ``parties may wish to proceed pro se'').
---------------------------------------------------------------------------
The CASE Act's legislative history suggests that the Office look to
the U.S. Patent and Trademark Office's Law School Clinic Certification
Program (``USPTO Program'') when considering how to encourage law
student representation before the CCB.\26\ The USPTO Program consists
of a complex multi-year process that requires an application by an
interested law school clinic, review and acceptance into the program,
USPTO monitoring over a training year, and reporting and renewal
requirements.\27\ The USPTO Program has grown since it was established
in 2008, and now over sixty clinics in approximately thirty states are
certified to have law students appear before the USPTO.\28\ The program
is run by five designated legal staff members within the USPTO's Office
of Enrollment and Discipline.\29\ The majority of the clinics in the
USPTO Program represent applicants seeking patent or trademark
registrations, and not parties involved in proceedings before the
Patent Trial and Appeal Board or Trademark Trial and Appeal Board.
Given the fact that practice before the CCB does not require the same
type of technical expertise, the Office has adopted those aspects of
the USPTO Program that are appropriate for the CCB. In light of the
CCB's overall obligations in commencing operations, the Office has
proposed a program which is feasible in light of its currently
available resources. In the interest of making pro bono resources
widely known and easily accessible, the Office proposes gathering
information similar to information acquired through the USPTO Program
\30\ and making it publicly available for participants to review and
assess. The Office believes that the proposed requirements would allow
new clinics located in areas where there are fewer legal resources to
participate in the CCB's program, and would allow clinics to be
available to represent clients soon after the start of CCB operations.
The rule proposed by the Office requires law school clinic directors to
certify that the clinic meets all legal obligations under applicable
state law prior to inclusion in the public directory. The Office
believes that the training in copyright law or practice before the CCB
that is required in the regulations will be most valuable to the
participating law students. After the CCB has become further
established, the Office will reconsider whether more robust
requirements should be imposed for law clinic certification.
---------------------------------------------------------------------------
\26\ S. Rep. No. 116-105 at 4.
\27\ See generally U.S. Patent and Trademark Office, Law School
Application Packet 2020-2022 Expansion, https://www.uspto.gov/sites/default/files/documents/2020-2022-Law_School_Application_Packet-May-2021.pdf (``USPTO Application'') (last visited Dec. 10, 2021).
\28\ U.S. Patent and Trademark Office, USPTO Law School Clinic
Certification Program, https://www.uspto.gov/sites/default/files/documents/USPTO_Law_School_Clinic_Certification_Program_Participating_School_Map-Oct2020.pdf (last visited Dec. 10, 2021).
\29\ U.S. Patent and Trademark Office, Law School Clinic
Certification Program, https://www.uspto.gov/learning-and-resources/ip-policy/public-information-about-practitioners/law-school-clinic-1
(identifying five staff attorneys assigned to the Law School Clinic
Program) (last visited Dec. 10, 2021).
\30\ See, e.g., USPTO Application at 22-25 (requesting
information about experience handling trademark and patent matters
and requiring law school clinics and supervising attorneys to
undertake various responsibilities regarding the law students they
supervise).
---------------------------------------------------------------------------
The Office seeks comments on whether the directory as proposed is
sufficient to allow participants to make an informed decision regarding
whether and where to seek clinic representation. The Office also seeks
comments regarding appropriate outreach strategies for encouraging law
school clinic participation.
C. Representation of Business Entities
Finally, the proposed rule addresses the issue of who will be
authorized to represent business entities, which include corporations,
limited liability companies, partnerships, and sole proprietorships,
before the CCB, and what kind of representation is required.
Longstanding practice in federal court requires that a business
entities appear with representation of counsel.\31\ Other
jurisdictions, however, provide greater flexibility, particularly in
the small claims context. In the Small Claims and Conciliation Branch
of the Civil Division of the Superior Court of the District of
Columbia, for instance, a corporation may appear as a plaintiff only
when represented by counsel, but as a defendant, it may be represented
by an authorized officer, director, or employee.\32\ In Virginia small
claims court, a corporation or partnership may be represented by an
officer or an employee of that entity. In fact, it may be represented
by an attorney only when the attorney is entering an appearance to
remove a case to general district court.\33\ In contrast, when
appearing in a Virginia general district court, a corporation must be
represented by an attorney, unless the amount in controversy is $2500
or less, the party is a private corporation whose stock is held by no
more than five persons, and all stockholders consent to an officer
providing representation.\34\ In Maryland, an officer, designated
employee, partner, or member of a limited liability company may appear
[[Page 74397]]
on behalf of the entity in the District Court of Maryland, so long as
the action is a small claims action and is not based on an assignment
to the entity of the claim of another.\35\
---------------------------------------------------------------------------
\31\ Rowland v. California Men's Colony, Unit II Men's Advisory
Council, 506 U.S. 194, 201-02 (1993) (``It has been the law for the
better part of two centuries, for example, that a corporation may
appear in the federal courts only through licensed counsel.'').
\32\ D.C. Sup. Ct. Small Cl. R. 9(b); D.C. Ct. App. R.
49(c)(11).
\33\ Va. Code Ann. 16.1-122.4 (2021). An attorney may represent
a corporate or partnership plaintiff or defendant, but only if they
are appearing pro se and not in a representative capacity. Id. at
16.1-122.4(A)(1).
\34\ Id. at 16.1-81.1; see id. at 16.1-88.3 (generally
prohibiting non-attorneys from litigating cases in Virginia courts).
\35\ Md. Code Ann., Bus. Occ. & Prof. 10-206(b)(4) (2021).
---------------------------------------------------------------------------
Given the small claims nature of the CCB and the interest in
facilitating participation before it, the proposed rule resembles the
practices in some state small claims courts rather than the federal
system. A business entity may be represented by an attorney, fiduciary,
or authorized employee in a CCB proceeding. Representatives must
certify that they are authorized to represent and bind the entity; if
the representative is an employee, the employee must also submit
written proof of that authorization. The Office welcomes comments on
this proposed framework.
List of Subjects
37 CFR Part 201
Copyright, General provisions.
37 CFR Part 232 and 234
Claims, Copyright.
Proposed Regulations
For the reasons stated in the preamble, the U.S. Copyright Office
proposes to amend Chapter II, Subchapters A and B, of title 37 Code of
Federal Regulations, as proposed to be amended at 86 FR 69890 (December
8, 2021), as follows:
SUBCHAPTER A--COPYRIGHT OFFICE AND PROCEDURES
PART 201--GENERAL PROVISIONS
0
1. The authority citation for part 201 continues to read as follows:
Authority: 17 U.S.C. 702.
Section 201.10 also issued under 17 U.S.C. 304.
0
2. In Sec. 201.2, revise paragraph (a)(2) to read as follows:
Sec. 201.2 Information given by the Copyright Office.
(a) * * *
(2) The Copyright Office does not furnish the names of copyright
attorneys, publishers, agents, or other similar information to the
public, except that it may provide a directory of pro bono
representation available to participants in proceedings before the
Copyright Claims Board.
* * * * *
SUBCHAPTER B--COPYRIGHT CLAIMS BOARD AND PROCEDURES
PART 232--CONDUCT OF PARTIES
0
3. The authority citation for part 232 continues to read as follows:
Authority: 17 U.S.C. 702, 1510.
0
4. Add Sec. 232.6 to read as follows:
* * * * *
Sec. 232.6 Representation of business entities.
(a) Definition. For the purpose of this section, a business entity
is a corporation, limited liability company, partnership, sole
proprietorship, or unincorporated association.
(b) Appearance of a business entity. A business entity may appear
before the Copyright Claims Board (``Board'') through: (1) A member in
good standing of the bar of the highest court of a State, the District
of Columbia, or any territory or commonwealth of the United States;
(2) A law student who meets the requirements set forth in 37 CFR
234.1;
(3) An owner, partner, officer, or member of the business entity;
or
(4) An authorized employee.
(c) Certification. Someone appearing before the Board to represent
a business entity pursuant to paragraphs (b)(3) or (4) of this section
shall certify that they are an authorized agent of the business entity
and may bind that entity in matters pending before the Board. If the
representative qualifies only as an authorized employee under paragraph
(b)(4) of this section, then within 30 days of the authorized
employee's initial appearance, the representative also must submit
written authorization, signed by an owner, partner, officer, or member
of the business entity under penalty of perjury, stating that the
representative may bind that entity on matters pending before the
Board.
(d) Subject to standards of professional conduct. Representatives
of business entities who appear pursuant to paragraphs (b)(3) or (4) of
this section are equally subject to the standards of conduct set forth
in 37 CFR 232.1 as any other party representative.
0
5. Part 234 is added to read as follows:
PART 234--LAW STUDENT REPRESENTATIVES
Sec.
234.1 Law student representatives.
234.2 Law school clinic directory.
Authority: 17 U.S.C. 702, 1510.
Sec. 234.1 Law student representatives.
(a) Eligibility for appearance. (1) State law compliance. Any law
student who is affiliated with a law school clinic, is qualified under
applicable laws governing representation by law students of parties in
legal proceedings, and meets the other requirements of this paragraph
may appear before the Copyright Claims Board (``Board''). Applicable
law is the law of the jurisdiction that certifies the student to
practice law in conjunction with a law school clinic.
(2) Pro bono representation. Any law student who appears before the
Board must provide representation on a pro bono basis.
(3) Competency. Law student representatives must meet a standard of
competency. For the purpose of appearances before the Board, competency
includes successful completion of:
(i) The first year of studies at an American Bar Association-
accredited law school; and
(ii) A copyright law course, formal copyright law training, or
formal training in Board procedures.
(b) Client consent. The law student representative shall have the
written consent of the client for the law student to appear on that
client's behalf.
(c) Attorney supervision. A law student who represents a party in a
proceeding before the Board shall be supervised by an attorney who is
qualified under applicable law governing representation by law
students, as specified in paragraph (a) of this section. In supervising
the law student, the attorney shall adhere to the requirements of 37
CFR 232.5.
(d) Confirmation of eligibility. In accordance with the standards
of professional conduct set forth in paragraph (j) of this section, the
attorney supervising the work of the law student representative is
responsible for confirming the law student's eligibility to appear
before the Board as set forth in paragraph (a) of this section.
(e) Identification of supervising attorney in documents. The name
of the supervising attorney shall appear on all documents signed by the
law student representative.
(f) Notice of appearance. In any proceeding in which a law student
represents a party, a notice of appearance shall be filed pursuant to
37 CFR 232.5(a) identifying both the law student representative and the
supervising attorney.
(g) Filing documents. All filings by a law student representative
shall be made with the knowledge of the supervising attorney, who shall
maintain an association with the law student representative in the
electronic filing system. The supervising attorney shall maintain their
own account, in addition to the law student's account, in
[[Page 74398]]
the electronic filing system to track law student filings. A notice of
withdrawal shall be filed whenever the identity of a law student
representative or a supervising attorney has changed.
(h) Appearance at hearings. The supervising attorney shall
accompany the law student representative to hearings held in accordance
with 37 CFR 222.15, absent leave of the Board for the law student to
appear without the presence of the supervising attorney.
(i) Responsibility for continuity of case management. The
supervising attorney shall be responsible for all aspects of case
management, including appearances and withdrawals, as well as
continuity of representation during law school term transitions.
(j) Applicability of rules of professional conduct. Law student
representatives are equally subject to the standards of conduct set
forth in 37 CFR 232.5 as any other attorney representatives. The
supervising attorney has professional responsibility for the actions of
the law student representative. The Board may hold supervisory
attorneys responsible for law student representative activity.
Sec. 234.2 Law school clinic directory.
(a) Publicly available directory. The Board shall make a directory
available on its website of law school clinics that have advised the
Board that they are available, on a pro bono basis, to represent
clients in proceedings before the Board.
(b) Form for inclusion. To be included in the public directory, the
law school clinic director shall submit a form providing the following
information for public dissemination:
(1) The name of the participating law school;
(2) The name of the participating clinic;
(3) The name of the director of the clinic;
(4) A general contact email address and phone number;
(5) The geographic area from which the clinic may accept clients;
(6) Whether the clinic has handled copyright matters in the past
two years;
(7) The nature of any copyright matters handled by the clinic in
the past two years;
(8) Whether the clinic has experience in handling litigation
matters;
(9) If the clinic does not have litigation experience, whether the
clinic has a partnership with a litigation clinic;
(10) A brief statement describing the clinic's interest in handling
matters before the Board; and
(11) A certification that student representatives participating in
the clinic will meet all requirements of 37 CFR 234.1(a).
(c) Standards for inclusion. Subject to paragraph (d) of this
section, the Board will accept for inclusion in the public directory
any law school clinic that certifies that its law student
representatives will meet all requirements of 37 CFR 234.1(a) and
provides sufficient information pursuant to paragraph (b) of this
section for participants in Board proceedings to evaluate whether
representation is available and appropriate.
(d) Removal from directory. The Board may, in its discretion,
remove a clinic from the directory if it determines that the clinic is
not suitable for representing clients before the Board, including,
without limitation, if it determines that the clinic has failed to
properly update its information in the public directory.
(e) Duty to update directory. Participating clinics have a duty to
maintain current information in the directory and shall confirm the
currency of the information on an annual basis.
Dated: December 22, 2021.
Kimberley Isbell,
Acting General Counsel and Associate Register of Copyrights.
[FR Doc. 2021-28154 Filed 12-29-21; 8:45 am]
BILLING CODE 1410-30-P
