[Federal Register: July 22, 2005 (Volume 70, Number 140)]
[Proposed Rules]
[Page 42286-42292]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22jy05-19]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 202
[Docket No. RM 2005-9]
Preregistration of Certain Unpublished Copyright Claims
AGENCY: Library of Congress, Copyright Office.
ACTION: Notice of Proposed Rulemaking
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SUMMARY: Pursuant to the Artists' Rights and Theft Prevention Act of
2005, the Copyright Office is proposing regulations for the
preregistration of unpublished works that are being prepared for
commercial distribution in classes of works that the Register of
Copyrights determines have had a history of pre-release infringement.
DATES: Comments are due no later than August 22, 2005. Reply comments
are due no later than September 7, 2005.
ADDRESSES: If hand delivered by a private party, an original and five
copies of any comment should be brought to Room LM-401 of the James
Madison Memorial Building between 8:30 a.m. and 5 p.m. and the envelope
should be addressed as follows: Office of the General Counsel, U.S.
Copyright Office, James Madison Memorial Building, Room LM-401, 101
Independence Avenue, SE., Washington, DC 20559-6000. If hand delivered
by a commercial courier, an original and five copies of any comment
must be delivered to the Congressional Courier Acceptance Site located
at Second and D Streets, NE., Washington, DC, between 8:30 a.m. and 4
p.m. The envelope should be addressed as follows: Copyright Office
General Counsel, Room LM-403, James Madison Memorial Building, 101
Independence Avenue, SE., Washington DC. If sent by mail, an original
and five copies of any comment should be addressed to: Copyright GC/
I&R, P.O. Box 70400, Southwest Station, Washington, DC 20024-0400.
Comments may not be delivered by means of overnight delivery services
such as Federal Express, United Parcel Service, etc., due to delays in
processing receipt of such deliveries.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
Charlotte Douglass, Principal Legal Advisor, P.O. Box 70400,
Washington, DC 20024-0400, Telephone (202) 707-8380. Telefax: (202)
707-8366.
SUPPLEMENTARY INFORMATION:
I. Background
This Notice of Proposed Rulemaking implements Section 104 of the
Family Entertainment and Copyright Act, enacted April 27, 2005. Among
other things, this new law permits owners of works in certain classes
that have experienced a history of infringement prior to commercial
distribution to preregister a work prior to its publication during the
period when the work is being prepared for commercial distribution.
On April 27, 2005, President Bush signed the Family Entertainment
and Copyright Act (``FECA''). Pub. L. No. 109-9, 119 Stat. 218. Title I
of FECA is the Artists' Rights and Theft Prevention Act of 2005, or
``ART Act,'' which among other things addresses copyright infringement
of works committed prior to their authorized commercial distribution,
or pre-release infringement. It includes, in section 103, new criminal
penalties for certain acts of pre-release infringement. Section 104
directs the Copyright Office to conduct a rulemaking proceeding to
establish a procedure for preregistration of unpublished works that are
being prepared for commercial distribution. The regulations are to be
in place not later than 180 days after enactment of the ART Act, i.e.,
by October 24, 2005. This notice proposes those regulations and seeks
public comment prior to the announcement of final regulations.
Sections 103 and 104 of the ART Act were enacted in response to the
increasingly serious problem of pre-release infringement. As Senator
Hatch, the sponsor of the legislation, stated upon introducing the ART
Act, ``Obviously, the increasingly frequent situation of copyrighted
works being distributed illegally via the Internet before they are even
made available for sale to the public severely undercuts the ability of
copyright holders to receive fair and adequate compensation for their
works.'' 151 Cong. Rec. S495 (daily ed. Jan. 25, 2005). Senator Cornyn,
a cosponsor, explained that the legislation ``focuses on the most
egregious form of copyright piracy plaguing the entertainment industry
today--the piracy of film, movies, and other copyrighted materials
before copyright owners have had the opportunity to market fully their
products.'' Id. at S498.
Copyright owners persuaded Congress that the existing rules making
copyright registration a prerequisite for suit for infringement of
United States works\1\ and a prerequisite for awards of attorney's fees
and statutory damages are unduly burdensome on plaintiffs seeking
relief against pre-release infringement in civil suits for copyright.
Because works intended for publication usually are not registered until
they are in final form and are being disseminated to the public, most
copyright owners' usual registration practices make it difficult to
file suit and obtain full relief in cases of pre-release infringement.
Accordingly, representatives of record companies and motion picture
studios sought amendments to sections 411 and 412 of the Copyright Act
that would remove the registration requirement in cases of pre-release
infringement. Rather than take such an action that would weaken the
incentive to register, Congress chose instead to instruct the Copyright
Office to create a process which would permit copyright owners of works
that have not yet been published and are being prepared for commercial
distribution to preregister those works.
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\1\ For the definition of ``United States work,'' see 17 U.S.C.
101. United States works include, among others, works first
published in the United States and unpublished works by United
States authors.
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Preregistration is not a substitute for registration, but is a
preliminary step prior to a full registration that will take place
after the work has been published or infringed.
II. Statutory Provisions
The ART Act amends section 408 of the Copyright Act to add a new
subparagraph (f), which directs the Register of Copyrights to allow
preregistration for any work that is in a class of works that the
Register determines has had a history of infringement prior to
authorized commercial distribution. A person who has preregistered a
work is required under section 408 to follow through with a
registration of the work within 3
[[Page 42287]]
months after the work has first been published. The ART Act also amends
sections 411(a) and 412 to provide that in a copyright infringement
lawsuit, preregistration will conditionally satisfy the registration
requirements of sections 411(a) and 412, but only if the copyright
owner follows through with a registration either within three months
after the first publication of the work or one month after the
copyright owner has learned of the infringement. Where a preregistered
work is not registered within the prescribed time period, a court must
dismiss an action for copyright infringement that occurred before or
within the first two months after first publication. See 17 U.S.C.
408(f), 411(a) and 412. However, the legislative history explains: ``By
its express terms, the prohibition on infringement suits contained in
Section 408(f)(4) does not apply to suits concerning infringements
commencing later than 2 months after first publication of a copyrighted
work that had been preregistered with the Copyright Office. Therefore,
notwithstanding a failure to meet the deadlines set forth in Section
408(f)(4) (A) and (B), a copyright owner of a preregistered work can
register his or her work under current law and bring infringement
actions for infringements occurring more than 2 months after first
publication.'' H. R. Rep. 109-33, pt. 1, at 5 (2005).
III. Eligibility for Preregistration
The legislative history offers some guidance on how the Register is
to determine what classes of works are eligible for preregistration.
``Section 104 expressly requires the Register of Copyrights to issue
regulations to establish a preregistration system for copyrighted
works. Since works are generally not formally registered until they are
in final form and ready for distribution to the public, civil remedies
for the distribution of pre-release works are lacking. This section
will give the Register flexibility to determine which classes of works
are appropriate for preregistration. The Committee believes that a
class of works with only a few instances of infringement prior to
authorized commercial distribution does not meet the test of a `history
of infringement' but otherwise leaves the decision to the Register of
Copyrights.'' H.R. Rep. No. 109-33, pt. 1, at 4.
Of primary importance, then, is the Register's determination of the
boundaries between classes of works that are eligible for
preregistration and those that are not. Preregistration is limited to
unpublished works being prepared for commercial distribution in a class
of works that have already experienced more than a few instances of
pre-release infringement.
A work submitted for preregistration must fulfill three conditions:
the work must be unpublished; the work must be in the process of being
prepared for commercial distribution; and the work must fall within a
class of works determined by the Register to have had a history of
infringement prior to authorized commercial distribution. These
conditions contain terms with special meanings within the purview of
copyright law in general, and in one case, within the purview of this
preregistration regulation.
A. Unpublished Status
To be eligible for preregistration, a work must be unpublished at
the time of its submission to the Copyright Office. Otherwise, the work
should be registered in published form and should be deposited with the
Copyright Office for the Library of Congress. Publication in the
copyright sense means ``the distribution of copies or phonorecords of a
work to the public by sale or other transfer of ownership, or by
rental, lease, or lending.'' 17 U.S.C. 101. Others may not be so
familiar with the section of the definition which reads ``the offering
to distribute copies or phonorecords to a group of persons for purposes
of further distribution, public performance or display constitutes
publication.'' Id. Consequently a work can be published, for example,
if it is in existence and has been offered to a group of disc jockeys
for purposes of public air play. A work is also published if it has
been delivered to a number of distributors for purposes of theatrical
exhibition.
B. Work Prepared for Commercial Distribution
The second condition for eligibility of a work for preregistration
is that a work must be in the process of being prepared for commercial
distribution. Although section 103(a)(3) of the ART Act, governing
criminal copyright infringement, provides a definition of ``work being
prepared for commercial distribution,'' that definition applies only to
that particular subsection of the ART Act and presumably has no weight
in determining what is a ``work being prepared for commercial
distribution'' for purposes of preregistration. However, the
legislative history offers no other guidance. Certainly, to be entitled
to preregistration in preparation for civil enforcement, a copyright
owner must have taken some steps preparatory to distribution to the
public. The question is, how extensive must those steps have been? Is
it sufficient that the copyright owner has a subjective intent to
distribute the work once it has been finished? If that were all that
was required, then arguably all works of authorship would qualify for
preregistration; presumably, it is a rare author who does not believe
his or her work is destined to reach its audience. Yet, some reasonable
limits must be placed on what is to be considered a ``work being
prepared for commercial distribution,'' lest virtually all works be
considered to fall within that category. Similarly, as is discussed
below, it seems unlikely that classes of works that have a history of
prerelease infringement would include works whose authors have the
subjective hope or intention to distribute, but for which no
arrangements to distribute have been made.
In determining what is meant, in the context of preregistration, by
``a work being prepared for commercial distribution,'' the background
to the enactment of section 104 of the ART Act and the purposes of that
section should be taken into account. As noted above, section 104 was
the result of requests by record companies and motion picture studios
for relief, in the context of pre-release infringement, from the
provisions of sections 411 and 412 that require copyright registration
as a prerequisite to suit and to certain remedies for infringement.
Their concern, and the concern of the Congressional sponsors of the ART
Act, was primarily with the relatively recent phenomenon of
infringement on the Internet, e.g., by means of peer-to-peer file-
sharing networks, of sound recordings and motion pictures prior to
their official release to the public. One of the most striking examples
before Congress related to the appearance on the Internet, two weeks
before its theatrical premiere in 2003, of the motion picture The
Incredible Hulk. As the ranking Member of the House Subcommittee on
Courts, the Internet and Intellectual Property observed when the House
Judiciary Committee favorably reported FECA, ``Pirates will always seek
treasure, and where they have truly found gold is in obtaining a pre-
released copy of a movie, sound recording or video game. In testimony
on this issue almost two years ago, industry representatives testified
that two weeks before the motion picture The Hulk was to be released in
theaters, an incomplete work print version of the film had been
illegally uploaded onto the Internet. In fact, reviews for The Hulk
were available before its release in theaters. The harm to the market
of a copyrighted work exponentially increases if the work is released
before
[[Page 42288]]
the editing or promotion for the product is completed.'' Prepared
Statement of the Honorable Howard L. Berman, H.R. Rep. No. 109-33, pt.
1, at 65. See also Piracy Deterrence and Education Act of 2003: Hearing
Before the Subcommittee on Courts, the Internet, and Intellectual
Property of the Committee on the Judiciary House of Representatives,
108th Cong. 61 (2003) (Statement of Maren Christensen, then Vice
President, Intellectual Property Counsel, Universal Studios).
In short, the problem identified by Congress when it enacted the
preregistration requirement was the phenomenon of infringement on the
Internet of works that are truly en route to commercial distribution.
Therefore, in order to qualify for preregistration, the creator of a
work must have taken some significant action to place the work in the
stream of commerce. On the other hand, we recognize that pre-release
infringement may take place even before a work has been completed.
Somebody who manages to get his or her hands on the dailies\2\ for one
day's filming of the next ``Harry Potter'' film and who posts that
footage on the Internet is engaging in a serious act of infringement of
that film, even if the filming of the motion picture is still in
progress. One who places Norah Jones' recording of a single cut from a
forthcoming album can cause serious harm, even while she is still in
the recording studio completing the album.
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\1\ ``Dailies'' (also known as ``rushes'') are ``The first
positive prints made from the negatives photographed on the previous
day. During filming, the director and some actors may view these
dailies as an indication of how the filming and the actors'
performances are progressing.'' IMDb Film Glossary, http://us.imdb.com/Glossary/D
.
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It seems reasonable to set the threshold for works being prepared
for commercial distribution not at the doing of any particular act of
distribution, which would be too harsh a requirement to protect works
destined for commercial distribution that are in relatively early
stages of preparation, but rather at some earlier stage. We can
identify two requirements that appear to be reasonably calculated to
meet the statutory requirement that the preregistered work is truly
being prepared for commercial distribution. First, preparation of the
work must have commenced. That means, at a minimum, that some portion
of the work has been fixed in a tangible medium of expression. See 17
U.S.C. 101 (definition of ``created'': ``A work is `created' when it is
fixed in a copy or phonorecord for the first time; where a work is
prepared over a period of time, the portion of it that has been fixed
at any particular time constitutes the work as of that time, and where
the work has been prepared in different versions, each version
constitutes a separate work.'').
Second, a contract must have been entered into for distribution of
the work. For a sound recording, the contract would be with a record
company. For a motion picture, the contract would be with a motion
picture studio. In the absence of such a contractual relationship - or
of some other objective evidence that the work ultimately will be
commercially distributed - the determination of whether a work is truly
being prepared for commercial distribution would be subjective.
Moreover, it is reasonable to conclude that the signing of a recording
contract or a motion picture distribution agreement will be the first
step down the road of commercial distribution. We elaborate on this
requirement in our discussion of the next topic: the determination of
classes of works that have had a history of pre-release infringement.
C. Classes of Works Determined to Have Had A History of Pre-Release
Infringement
The ART Act requires the Register to permit preregistration for
works in those classes of works that she determines have had a history
of infringement prior to authorized distribution. 17 U.S.C. 408(f)(2).
This requires the Register to designate classes of works that she
determines have had a history of pre-release infringement. As noted
above, however, the legislative report confirms that the Register does
not have discretion to permit preregistration for classes of works that
have had only a few instances of infringement in pre-release form. H.
R. Rep. No. 109-33, at 4.
The Copyright Office was involved in discussions with Congress
leading up to the passage of this legislation; it is therefore aware of
the cases made by record companies and motion picture studios to
Congress that pre-release infringement has been a serious problem in
their industries. Pre-release infringement of motion pictures and sound
recordings has also been reported in the press. See, e.g., ``Suspect in
Movie Piracy Is Fugitive; Man Charged with Videotaping Films at Pre-
Release Screenings Flees Days before Trial,'' Los Angeles Times, Jan.
10, 2004, p. B3; ``She's Burning Up; Madonna Blasts Pirates Who Try to
Steal `Life,''' Newsday, Apr. 18, 2003, p. A14. We therefore propose to
include motion pictures and sound recordings among the classes of works
eligible for preregistration. Because sound recordings almost always
include performances of musical works, we also propose to include
nondramatic musical works that are performed on sound recordings as a
class eligible for preregistration. As the legislative history notes,
``a preregistration of a sound recording does not by itself constitute
preregistration of the musical works embodied in the sound recording.''
H. R. Rep. No. 109-33, at 5. We do not propose that a preregistration
of a sound recording would automatically constitute preregistration of
any of the musical works on that recording. However, as is the case
with current copyright registration practice, an applicant who is the
copyright owner of both a sound recording and a musical work performed
on that sound recording may preregister both the sound recording and
the musical work in a single preregistration.
Although this notice of proposed rulemaking does not propose any
additional classes of works, the Office seeks comments on whether there
are additional classes of works that have a history of pre-release
infringement. Proponents of a class of works should be prepared to
document more than ``a few instances'' of pre-release infringement. See
H. R. Rep. No. 109-33, at 4. And although this notice proposes to
include motion pictures, sound recordings and musical works among the
eligible classes, the burden remains on proponents of those three
classes of works to make the case to the Office that these classes of
works have indeed experienced a history of pre-release infringement.
Proponents of any class should be prepared to demonstrate that there is
a substantial history of pre-release infringement which is likely to
continue, causing harm to copyright owners that can be ameliorated by
permitting preregistration of such works.
The Office is also informed by its experience making previous
determinations regarding classes of works in carrying out its
responsibilities under the Digital Millennium Copyright Act (DMCA),
Pub. L. No. 105-304, 112 Stat. 2860 (October 28, 1998). The DMCA added
section 1201 to Title 17, requiring the Register to recommend ``classes
of works,'' if any, that should be subject to exemption from one of the
DMCA's anticircumvention provisions. In response to section 1201's
mandate, the Register has been involved in triennial rulemaking
proceedings to determine any classes of works that should be subject to
an exemption from the prohibition against circumventing access control
measures.
[[Page 42289]]
Section 104 of the ART Act was drafted with section 1201's ``class
of works'' provision in mind, and Congressional guidance on the meaning
of the phrase ``class of works'' in section 1201 is instructive. In
that context, the legislative history indicates an intent ``that the
`particular class of copyrighted work' be a narrow and focused subset
of the broad categories of works of authorship than [sic] is identified
in section 102 of the Copyright Act (17 U.S.C. 102).'' Report of the
House Committee on Commerce on the Digital Millennium Copyright Act of
1998, H.R. Rep. No. 105-551, pt. 2, at 38 (1998).
In the context of and in light of the purpose of preregistration -
which is to afford a remedy to copyright owners of works which are
likely to be subject to pre-release infringement, we believe that the
proposed classes of works - motion pictures, sound recordings and
nondramatic musical works - can be appropriately narrowed by focusing
on the requirement that a distribution agreement be in place for the
work that is being prepared for commercial distribution. To guard
against the possibility of fraud, we believe that it would be prudent
to include, as part of that requirement, that the distributor be an
``established'' distributor of motion pictures or phonorecords, as the
case may be. An ``established'' distributor is an entity that is
actually in the business of commercial distribution of the class of
works and that has actually engaged in commercial distribution of
several such works in the past year. Because nondramatic musical works
are now commercially exploited primarily in the form of prerecorded
music, the requirement for a nondramatic musical work would be
satisfied if there is in existence a distribution agreement to
distribute phonorecords of a sound recording that includes a
performance of the musical work.
Such a requirement assists in ensuring that works subject to
preregistration fall within classes in which there has been a history
of infringement. We are not aware of any history or danger of pre-
release infringement of works for which the prospect of commercial
distribution is so remote that no arrangements have been made for
authorized distribution. The fact that in enacting the ART Act,
Congress was responding to concerns of motion picture studios and
record companies about pre-release infringement of their works further
bolsters the conclusion that the focus of preregistration should be on
works for which distribution agreements already exist. To the community
of Internet infringers who are eager to offer a motion picture or
phonorecord for downloading prior to its official release, there is no
glory, cachet or profit in offering a work for which there is no
demand, and the existence of an agreement to distribute a work is a
reliable indicator of such demand, as well as being a reliable
indicator that the work is truly being prepared for commercial
distribution.
We also propose to narrow the eligible classes of works further by
reference to the nature of the distribution agreements. It appears that
thus far, works that have been subject to pre-release infringement are
works for which there is an anticipated demand. For motion pictures,
that still means that the work will be distributed for theatrical
exhibition. The Office also does not propose to include motion pictures
for which the distribution agreements provide only for ``direct-to-
video'' or online distribution, since the Office has no reason to
believe that those motion pictures, which presumably are much less in
demand than motion pictures that will be distributed theatrically, have
had a history of prerelease infringement. For sound recordings, that
still means that the work will be distributed in physical phonorecords
(e.g., CDs or DVDs). While we recognize that online distribution is
becoming increasingly significant, it has not yet supplanted physical
distribution as the principal means of disseminating motion pictures
and sound recordings. Moreover, including works that are distributed
only online would probably be overinclusive: anybody can make his or
her work available for online distribution, even if there is no demand
for the work. Because preregistration is intended for works that have
had a history of prerelease infringement, the Office believes that
including works for which the only distribution agreements relate to
online distribution would be vastly overinclusive. Of course, over time
that may well change and require that the Office reexamine those
conclusions. We seek comments as to whether our assumptions are valid.
In considering how to determine what classes of works should be
included in the preregistration system, the Office has also weighed the
possibility of requiring that such works be by authors or performers
who have had some track record of success, or at least who have
previously had their works released for commercial distribution. While
we have chosen not to include such a requirement in the proposed rules,
we seek comment on whether such a requirement is desirable and
workable. One reason we have chosen not to include the requirement in
the proposed rules is our uncertainty as to how one would determine
whether a particular author or performer has a successful track record.
We seek comments on whether our proposal is based on valid assumptions.
Comments are sought as to whether the proposed classes of works are
underinclusive or overinclusive, keeping in mind that the only works
that are to be included are works being prepared for commercial
distribution and that the Register is to designate only classes of
works that have a history of pre-release infringement. Proponents of
broader or additional classes of works should back up their proposals
with evidence that responds to those requirements.
The proposed classes are:
1. Motion pictures subject to theatrical distribution contracts
with established distributors of motion pictures; .
2. Sound recordings subject to contracts for distribution of
physical phonorecords with established distributors of phonorecords;.
3. Nondramatic musical compositions performed in sound recordings
subject to contracts for distribution of physical phonorecords with
established distributors of phonorecords.
IV. Procedures for Preregistration
A. Overview of Preregistration Process
Preregistration is meant for those who wish to preregister a claim
in a work which falls within a ``class of works that the Register
determines has had a history of infringement prior to authorized
commercial distribution.'' 17 U.S.C. 408(f)(2). As a general principle,
preregistration will be as streamlined a process as possible. Persons
wishing to preregister a copyright will be required to apply online,
and the electronic application will require sufficient information to
reasonably identify the work for which preregistration is sought, but
no deposit materials will be required and the application will not be
examined except to ascertain that all the necessary information has
been provided.
Preregistration is not a substitute for registration. It is simply
a means of preserving the ability to satisfy the requirements of
sections 411(a) and 412 of the Copyright Act by advising the Copyright
Office prior to the publication of a work that the work is being
prepared for commercial distribution, and following through with a
registration shortly after publication or infringement of the work. The
fact that a work has been preregistered does not mean that the
Copyright Office
[[Page 42290]]
necessarily will register the work when an application for registration
is submitted.
A work that would not ultimately be eligible for copyright
registration should not be submitted for preregistration. However,
unlike registration, which is prima facie evidence of the validity of
the copyright and of the facts stated in the certificate,
preregistration carries no such presumptions. For that reason, the
Office will not conduct the type of examination that is done with
respect to copyright registration, and a preregistration will not be
subject to cancellation.
To preserve the legal benefits of preregistration, a preregistered
work must be registered within one month after the copyright owner
becomes aware of infringement but in no case later than three months
after first publication. In this sense, preregistration is a prelude to
full registration.
B. General Observations about Preregistration Procedure
1. Form PRE
The Copyright Office is creating a new form which is specifically
designed to elicit only basic information. The Form PRE must be
submitted electronically and will be available only in that form, on
the Copyright Office's website.
2. No Deposit Copy or Phonorecord Required
Because preregistration is not a form of registration, but is
simply an indication of an intent to register a work once it has been
completed and/or published, there will be no deposit requirement.
However, the application form should contain a detailed description of
the work, keeping in mind that the description becomes an important
part of the preregistration public record and that it will not be
possible to cancel or expunge this record. The space limitation for the
description on Application Form PRE is 2000 characters. The Office will
not pass judgement on the adequacy of the description, but a court
might well conclude, based on a comparison of the finished work with
the description in the preregistration application, that the
preregistration does not actually pertain to the work that is alleged
to have been infringed.
3. Preregistration Fee
The preregistration fee will be set to recover costs to establish
the new system in the Copyright Office and provide the preregistration
service. In principle, the fee should cover the actual cost to the
Office of processing each preregistration, and the fees collected for
preregistration should collectively cover the start-up costs for
creating the new electronic preregistration program, spread over a
period of time. In determining the appropriate fee that would meet
those guidelines, a key element is an estimate of how many
preregistrations will be received each year. While it is difficult to
predict how many preregistrations will be received, the Office believes
a reasonable estimate would be 300. If that estimate is accurate, then
in order to recoup the costs of setting up the system over a period of
five years, it would be necessary to charge a fee of $250. However, the
Office recognizes that $250 would be a very substantial fee, and as a
result it is proposed that the preregistration fee initially be set at
$100, with the understanding that the fee will be reevaluated after
several months of experience once the Office has a better idea of how
many preregistrations will occur.
The Office considered requiring prepayment of the registration fee
as part of preregistration, in order to provide an additional
inducement to follow through with a registration, but at this time the
logistical problems of requiring prepayment appear to outweigh its
benefits. The Office welcomes comment on establishing a system in the
future whereby the applicant for preregistration simultaneously prepays
the registration fee in order to facilitate and further encourage
prompt registration.
4. Verification
The applicant must verify under penalty of law that he or she is an
author, a claimant, or other party authorized to submit the claim for
the copyright owner and that the statements made in the preregistration
application are correct to the best of the applicant's knowledge.
5. Numbering
All preregistrations will be numbered with the prefix ``PRE'' and
will be numbered consecutively. Preregistration claims will not be
issued according to registration class, i.e., VA, PA, or TX.
6. Online Record.
All completed preregistrations will be accessible through the
Copyright Office's online database by title, author and claimant.
Therefore, a search for preregistration records should enable discovery
of the registration record for the same work. It is recognized that in
some cases, for reasons such as changes in ownership and other changes
that take place during the creation of a work, the title, author and/or
claimant named on the preregistration form may be different from the
actual title, author and claimant later identified in the registration
record.
7. Notification of Preregistration.
Upon completion of the preregistration, the Office will issue an
email notification of preregistration to the claimant. Each e-mail will
remind the claimant that a timely basic registration should be made as
the follow-up to preregistration and that the application for basic
registration should contain a reference to the preregistration number
to enable the Office's preregistration and basic registration records
for the particular work to be tied together through cross-entry of the
two numbers.
For further verification that a work has been preregistered, it
will be possible to view the record for any preregistered work on the
Copyright Office's website and to print that information. At this time,
the Office does not anticipate sending a printed certificate or
notification of preregistration, but we solicit comments on whether
(and why) such a practice would be desirable.
8. No Cancellation or Correction of Preregistrations
Once entered in Copyright Office records, a preregistration will
not be cancelled. Thus, the Office will not expunge its records, for
example, of an applicant's incorrect description of a work or other
error. An applicant who acts promptly before issuance of notification,
however, may withdraw an application for preregistration. However, it
is anticipated that preregistrations will be processed shortly after
they are submitted. Nor can a preregistration be corrected,
supplemented, or amended after completion. Thus, for example, the
Office will not accept a Form CA (supplementary registration) to
correct or supplement the information in a preregistration record. An
applicant who wishes to correct the record must submit another
application for preregistration containing the corrected or omitted
information.
9. Preregistration as a Single Work
Just as a single registration may be made for a number of self-
contained works that are first published in a single unit of
publication, see 37 C.F.R. Sec. 202.3(b)(3)(i)(A), preregistration may
be made for all such works having the same copyright claimant if they
will be first published in a single unit of publication. For example,
if the same party owns the copyright in both a sound recording and the
musical compositions embodied in the sound recording, both claims may
be preregistered on one Form PRE.
10. Summary
To summarize, an applicant who owns an exclusive right in an
unpublished work being prepared for
[[Page 42291]]
commercial distribution that falls within one of the Register's
determined classes of works may preregister that work in the name of
the anticipated claimant with the Copyright Office on or after October
24, 2005, by completing Application Form PRE online and paying the
prescribed fee online by Deposit Account or Credit Card.
C. Preregistration Application Form - Electronic Only
At this time, the Office anticipates that the application for
preregistration will require that the applicant provide the following
information:
1. Type of work being preregistered:
Motion picture subject to theatrical distribution contract with an
established distributor of motion pictures;
Sound recording subject to contract for distribution of physical
phonorecords with an established distributor of phonorecords; or
Nondramatic musical composition performed in sound recording subject
to contract for distribution of physical phonorecords with an
established distributor of phonorecords.
2. Title
3. Additional titles [optional]
4. Author (i.e., the person who is anticipated to be given on the
basic application as author under the copyright law of the completed
work when the basic, follow-up registration is made).
5. Claimant (i.e., the person who is anticipated to be given on the
basic application as the owner of copyright in the completed work
when the basic, follow-up registration is made).
6. Claimant Address.
7. Description of the work being claimed for preregistration.
(Instructions will indicate that the description should be detailed
and specific in order to identify the particular work for which
preregistration is sought. The maximum length of the description
will be 2000 characters - approximately 330 words.) Examples:
A. A motion picture should generally be described in terms such as
the subject matter it treats or a plot summary or outline; the
director, if known; major actors appearing in the motion picture, if
known; the principal location of filming; and any other details
which would assist in identifying the particular motion picture.
B. A sound recording should generally be described in terms such as
the subject matter of the underlying work recorded; the performer or
performing group, if known; the genre of the work recorded, e.g.,
classical, hard rock, blues; the principal recording location, if
known; titles of the musical compositions being performed, if known,
and any other characteristics of the recording which may help in
identifying the particular recording.
8. Date on which creation of the work commenced.
9. Date of anticipated completion of the work.
10. Date of anticipated commencement of commercial distribution of
the work.
11. Certification under penalty of law.
12. Name of person submitting the preregistration.
List of Subjects in 37 CFR Part 202
Claims to copyright, Copyright, Registration requirements.
Proposed Regulations
In consideration of the foregoing, the Copyright Office proposes to
amend part 202 of 37 CFR, chapter II in the manner set forth below:
PART 202--REGISTRATION OF CLAIMS TO COPYRIGHT
1. The authority citation for part 202 is revised to read as
follows:
Authority: 17 U.S.C. 408(f), 702
2. The heading of Part 202 is revised to read as follows:
PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT
3. A new Sec. 202.16 is added to read as follows:
Sec. 202.16 Preregistration of Copyrights
(a) General. This section prescribes rules pertaining to the
preregistration of copyright claims in works eligible for
preregistration under Section 408(f) of 17 U.S.C.
(b) Definitions. For the purposes of this section-
(1) A work is in a class of works that the Register of Copyrights
has determined has had a history of infringement prior to authorized
commercial release if it is one of the following:
(i) A motion picture subject to a theatrical distribution contract
with an established distributor of motion pictures;
(ii) A sound recording subject to a contract for distribution of
physical phonorecords with an established distributor of phonorecords;
or
(iii) A nondramatic musical composition performed in a sound
recording subject to a contract for distribution of physical
phonorecords with an established distributor of phonorecords;
(2) An established distributor of motion pictures is a person or
entity that is actually in the business of commercial distribution of
motion pictures and that has actually engaged in commercial
distribution of two or more motion pictures within the past year.
(3) An established distributor of phonorecords is a person or
entity that is actually in the business of commercial distribution of
phonorecords and that has actually engaged in commercial distribution
of two or more phonorecords within the past year.
(4) A work is being prepared for commercial distribution if:
(i) Preparation of the work has commenced and at least some portion
of the work has been fixed in a tangible medium of expression; and
(ii) a contract has been entered into for the commercial
distribution of the work to the public.
(5) A work eligible for preregistration is a work that is:
(i) Unpublished;
(ii) Being prepared for commercial distribution; and
(iii) In a class of works that the Register of Copyrights has
determined has had a history of infringement prior to authorized
commercial release.
(c) Preregistration. (1) General. A work eligible for
preregistration may be preregistered by submitting an application and
fee to the Copyright Office pursuant to the requirements set forth in
this section.
(2)Works excluded. Works that are not copyrightable subject matter
under title 17 of the U.S. Code may not be preregistered in the
Copyright Office.
(3) Application form. An application for preregistration is
Electronic Form PRE. The application must be submitted electronically
on the Copyright Office website at: [Address to be given in the final
rule].
(4) Preregistration as a single work. For the purpose of
preregistration on a single application and upon payment of a single
preregistration fee, all copyrightable elements that are otherwise
recognizable as self-contained works, that are to be included and first
published in a single unit of publication, and in which the copyright
claimant is the same, shall be considered a single work eligible for
preregistration.
(5) Fee. (i) Amount. The filing fee for preregistration is $100.
(ii) Method of payment. (A) Copyright Office deposit account. The
Copyright Office maintains a system of Deposit Accounts for the
convenience of those who frequently use its services and for those who
file applications electronically. The system allows an individual or
firm to establish a Deposit Account in the Copyright Office and to make
advance deposits in that account. Deposit Account holders can charge
preregistration fees against the balance in their accounts instead of
using credit cards for each request of service. For information on
Deposit Accounts, please download a copy of Circular 5, ``How to Open
and Maintain a Deposit
[[Page 42292]]
Account in the Copyright Office,'' or write the Register of Copyrights,
Copyright Office, Library of Congress, Washington, D.C. 20559.
(B) Credit cards, debit cards and electronic funds transfer. The
online preregistration filing system will provide options for payment
by means of credit or debit cards and by means of electronic funds
transfers. Applicants will be redirected to the Department of
Treasury's Pay.gov website to make payments with credit or debit cards,
or directly from their bank accounts by means of ACH debit
transactions.
(C) No refunds. The fee is not refundable.
(6) Description. No deposit of the work being preregistered should
be submitted with an application for preregistration. The
preregistration applicant should submit a detailed description, of not
more than 2,000 characters (approximately 330 words), of the work as
part of the application. The description should be based on information
available at the time of the application sufficient to reasonably
identify the work. The Copyright Office will not review descriptions
for adequacy except in extreme cases, but in an action for infringement
of a preregistered work, the court may evaluate the adequacy of the
description to determine whether the preregistration actually describes
the work that is alleged to be infringed, taking into account the
information available to the applicant at the time of preregistration.
For motion pictures such a description should include the following
information to the extent known at the time of filing: subject matter,
a summary or outline, the director, the primary actors, the principal
location of filming, and any other information that would assist in
identifying the particular work being preregistered. For sound
recordings and for nondramatic musical works, the identifying
description should include the following information to the extent
known at the time of filing: the subject matter of the work or works
recorded, the performer or performing group, the genre of the work
recorded (e.g., classical, pop, musical comedy, soft rock, heavy metal,
gospel, rap, hip-hop, blues, jazz), the titles of the musical
compositions being recorded, the principal recording location, and the
composer(s) of the recorded musical compositions embodied on the sound
recording and any other information that would assist in identifying
the particular work being preregistered.
(7) Examination. The Copyright Office will conduct only a limited
examination of applications for preregistration, in order to ascertain
whether the application describes a work that is in a class of works
that the Register of Copyrights has determined has had a history of
infringement prior to authorized commercial release. However, a work
will not be preregistered unless an applicant has provided all of the
information requested on the application and has certified that all of
the information provided on the application is correct to the best of
the applicant's knowledge.
(8) Notification of preregistration. Upon completion of the
preregistration, the Copyright Office will provide the claimant
notification by email of the preregistration. The preregistration
record will also be available to the public on the Copyright Office
website, http://www.copyright.gov.
(9) Effect of preregistration. Preregistration of a work offers
certain advantages to a copyright owner pursuant to 17 U.S.C. 411 and
412. However, preregistration of a work is not prima facie evidence of
the validity of the copyright or of the facts stated in the application
for preregistration or in the preregistration record. The fact that a
work has been preregistered does not create any presumption that the
Copyright Office will register the work upon submission of an
application for registration.
Dated: July 18, 2005
Marybeth Peters,
Register of Copyrights.
[FR Doc. 05-14516 Filed 7-21-05; 8:45 am]
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