[Federal Register: March 25, 2009 (Volume 74, Number 56)]
[Rules and Regulations]
[Page 12554-12556]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25mr09-8]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2008-1]
Recordation of Notices of Termination of Transfers and Licenses;
Clarifications
AGENCY: Copyright Office, Library of Congress.
ACTION: Final rule.
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SUMMARY: The Copyright Office is adopting amendments to its regulations
governing the recordation of notices of termination and certain related
provisions.
DATES: EFFECTIVE DATE: March 25, 2009.
FOR FURTHER INFORMATION CONTACT: Maria Pallante, Associate Register for
Policy and International Affairs, Copyright GC/I&R, P.O. Box 70400,
Washington, DC 20024-0400. Telephone (202) 707-8380. Fax (202) 707-
8366.
SUPPLEMENTARY INFORMATION: The Office published a Notice of Proposed
Rulemaking in the Federal Register on January 23, 2008 (73 FR 3898),
seeking public comment on five proposed amendments to its regulations
at Sec. Sec. 201.1, 201.3, 201.4 and 201.10 of Chapter 37. These
were: 1) an amendment communicating the Office's practices as to its
receipt of notices of termination that are untimely; 2) an amendment
clarifying that recordation of a notice of termination by the Office
does not necessarily mean that the document is legally sufficient; 3)
an amendment updating the legibility requirements for all recorded
documents, including notices of termination; 4) an amendment making
minor explanatory edits to the fee schedule for multiple titles within
a document (adding ``e.g. a Notice of Termination'' as an example); and
5) an amendment establishing a new mailing address to which notices of
termination should be sent. (For ease of explanation only, the
amendments are herein referred to as amendments one through five.)
The Office received two comments, each on February 22, 2008, from
Law Professor Daniel N. Ballard, University of the Pacific McGeorge
School of Law, and from Terrie Bjorkland on behalf of the American
Federation of Television and Radio Artists (AFTRA). Both commentators
questioned the basis for, and the likely impact of, amendment number
two. Mr. Ballard first suggested that there is no justification for the
proposed language, and second suggested that rather than being neutral
on its face, the language, as worded, might create ``an improper bias
against the termination of copyright interests.'' Ms. Bjorkland
observed that the proposal emphasizes the inconclusive impact of the
filing of a notice, doing ``little to give artists a sense of comfort
that the Copyright Office is facilitating the protection of their right
of termination.'' In addition, she expressed opposition to amendment
number one, questioning why the Office should make a determination that
a notice is untimely, when ``it is incumbent upon the challenging party
to contest the validity of the notice, if appropriate.'' After
considering these comments, the Office is adopting all of the
aforementioned amendments, but in doing so is rephrasing amendment
number two.
Background
The Copyright Office is an office of public record which receives
and records documents that pertain to copyright, including,
specifically, notices of termination. Notices of termination may be
served by authors (and certain heirs, beneficiaries or representatives
of authors who are specified by statute) to extinguish the exclusive or
nonexclusive grants of transfers or licenses of copyright or the
divisible rights thereunder. The provisions have an equitable function:
they exist to allow authors or their heirs a second opportunity to
share in the economic success of their works.
The termination provisions are set forth in three sections of the
law: Sections 304(c), 304(d) and 203 of the 1976 Copyright Act, Title
17 of the United States Code. The sections are similar, though not
identical, and they govern distinct categories of works. (None of the
sections applies to copyrights in works made for hire or grants made by
will.)
Section 304(c) governs any work in which the copyright was
subsisting in its first or renewal term as of January 1, 1978, and
provides for termination of the exclusive or nonexclusive grant of a
transfer or license of the renewal copyright (or any right under it)
executed before January 1, 1978. Termination may be exercised at any
time during a five year period beginning at the end of fifty-six years
from the date copyright was originally secured.
Section 304(d) provides a termination right for a subset of works
for which the termination right under section 304(c) expired (and was
not exercised) on or before the effective date (October 27, 1998) of
the ``Sonny Bono Copyright Term Extension Act,'' which extended the
copyright term by 20 years. It provides for termination of the
exclusive or nonexclusive grant of a transfer or license of the renewal
copyright (or any right under it) at any time during a five year period
beginning at the end of 75 years from the date copyright was originally
secured.
Section 203 is limited to grants executed by the author. It
provides for termination of the exclusive or nonexclusive grant of
copyright (or any right under copyright) executed on or after January
1, 1978 (regardless of whether the copyright was secured prior to
1978). Termination may be exercised at any time during a period of five
years beginning at the end of thirty-five years
[[Page 12555]]
from the date of publication of the work under the grant or at the end
of forty years from the date of execution of the grant, whichever is
earlier.
By all accounts, the termination provisions are dense and
formalistic, particularly for a non-lawyer. In summary, the author (or
if the author is deceased, the party specified by statute) must serve
the notice of termination in writing on a grantee or the grantee's
successor-in-title not less than two or more than ten years before the
effective date, in a form and manner prescribed by regulation.\1\
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\1\If the author executed the grant but is no longer living, the
termination interest is owned and may be exercised by the author's
widow or widower and any children or grandchildren on a per stirpes
basis (subject to certain conditions concerning the disposition of
partial interests of multiple authors and heirs), or if the
aforementioned are deceased, by the author' executor, administrator,
personal representative, or trustee. 17 U.S.C. 203(a)(1)-(2); 17
U.S.C. 304 (c)(1)-(2); 17 U.S.C. 304(d)(1). Moreover, under Sections
304(c) and 304 (d), if the author is no longer living and the grant
has been executed by one or more persons designated by statute,
termination may be exercised by the surviving person or persons who
executed it. 17 U.S.C. 304(c); 17U.S.C. 304(d); 17 U.S.C.
304(a)(1)(c). Note that this is not true of Section 203, which
applies only to grants executed by authors. 17 U.S.C. 203(a).
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A copy of the notice of termination must be recorded with the
Copyright Office before the effective date of termination. 17 U.S.C.
304(c)(4)(A); 304(d)(1); 203(a)(4)(A). (Emphasis added.) The
particulars of the recordation process are prescribed by regulation. In
short, the copy must be legible and must include the following
elements: 1) either actual signatures or reproductions of signatures 2)
a statement setting forth the date the notice was served 3) an
indication of the manner of service and 4) submission of the
appropriate filing fee. 37 CFR 201.4(c)(3); 37 CFR 201.10(f).
A discussion of the amendments follows.
DISCUSSION OF PROPOSED AMENDMENTS
Timeliness of Notices of Termination
The Copyright Office cannot accept a notice of termination that is
untimely because, under the law, lateness is a fatal mistake. (By
contrast, see 37 CFR 201.10(e) for examples of forgivable, harmless
errors.) Thus, before the Copyright Office records a notice, it reviews
for timeliness. Specifically, it confirms that the notice has been
served within the relevant statutory time frame (as derived from the
facts stated in the notice), and has been received by the Office prior
to the stated effective date of termination.
In practice, if in the judgment of the Office the document is
untimely, the Office will take one of two actions. If the notice is
premature, the Office will return it with an explanation, so that the
serving party may resubmit the notice to the Office at a later date
(and, as necessary, resubmit the notice to the party being served). On
the other hand, if the document is tardy, the Office will offer only to
record and index the document according to its general recordation
practices, as a ``document pertaining to copyright.'' 17 U.S.C. 205(a);
37 CFR 201.4(a)(2). It will not accept the document as a ``notice of
termination,'' meaning that it will not be specially indexed as such.
Whether such general recordation by the Copyright Office will be
sufficient in any particular instance to effect termination as a matter
of law is an issue that only the courts may resolve.
Notwithstanding the objection expressed by AFTRA with respect to
amendment one, the Office's practice is consistent with the statute.
Moreover, since the amendment restates the longstanding practice of the
Office (i.e. it does not introduce a new practice), the Office
maintains that the amendment is merely educative, and may prove helpful
to interested parties who are looking for guidance.
Recordation as Distinguished from Legal Sufficiency
Under amendment two, the Office states a truism: the fact that the
Office has accepted a document and recorded it as a notice of
termination does not mean, necessarily, that the notice is sufficient
to effect termination under the law. As proposed in the Notice of
Proposed Rulemaking, the following sentence would have been introduced
at the top of the paragraph: ``The mere fact that a notice of
termination has been recorded does not mean that it is legally
sufficient.'' The remainder of the paragraph would have followed and
remained unchanged: ``Recordation of a notice of termination by the
Copyright Office is without prejudice to any party claiming that the
legal and formal requirements for issuing a valid notice have not been
met.''
On this issue, the Office does not find the stated concerns of the
commentators to be entirely plausible. Recordation is a required act
under the law but, once completed, it carries no legal presumption that
termination has been properly effected. If authors or their
representatives believe otherwise, it is all the more important that
this fact be clearly and accurately stated. The reality is that the
Office, aside from its review for timeliness (discussed above), does
not confirm the validity of the alleged facts that are reported in each
notice. To do so would be an impossible exercise. This means that the
Office may accept and record a notice of termination even though any
number of elements may ultimately prove to be wrongly stated and
invalid under the law, from the named authors, to the designation of
beneficiaries, to the date or characterization of the grant. In
instances where termination has not been perfected in the first place,
recordation of the notice is of no consequence. The proposed amendment
would not have changed this result --- only confirmed it for clarity's
sake.
Nevertheless, the Office is not wedded to the particular
formulation of the point as originally proposed. In his comments, Mr.
Ballard objected, in particular, to use of the phrase ``mere fact,''
which he saw as ``loaded language'' that would, in practice, undermine
the termination process by favoring grantees over authors. In response,
the Office has removed ``mere fact'' and constructed a new formulation,
which in part repeats the operative language of the statute. It reads
as follows: ``A copy of the notice of termination shall be recorded in
the Copyright Office before the effective date of termination, as a
condition to its taking effect. However, the fact that the Office has
recorded the notice does not mean that it is otherwise sufficient under
the law.'' The existing sentence will follow: ``Recordation of a notice
of termination by the Copyright Office is without prejudice to any
party claiming that the legal and formal requirements for issuing a
valid notice have not been met.''
Legibility of Notices of Termination and Other Documents Pertaining to
Copyright
Amendment three is relatively minor, but nonetheless underscores
the mission of the Copyright Office as an office of public record. It
updates the legibility requirement by replacing the reference to
``microform copies'' with a broader, more flexible reference to
technology. As revised, a document must be ``legible and capable of
being imaged or otherwise reproduced in legible copies by the
technology employed by the Office at the time of submission.''
(Emphasis added.) The Office received no objections to this revision.
Fee Requirements for Notices of Termination
With respect to fees, it is the Copyright Office' experience that
parties who submit notices of termination for recordation sometimes
miscalculate the amount due, especially where grants of rights in
multiple works are being
[[Page 12556]]
terminated by virtue of one document. Amendment four adds the notice of
termination as an express example in the schedule of fees under section
201.3(c)(16), specifying that the basic fee for recordation of a notice
of termination containing a single title is $95, and the fee for
recordation of a notice of termination containing more than one title
is an additional $25 per group of 10 titles. The Office received no
objections to this revision.
Mailing Address for Notices of Termination
Finally, because notices of termination are time-sensitive, a delay
in processing may have serious consequences. Amendment five officially
activates the special post office box at the Copyright Office, from
which notices of termination can more easily be sorted and routed for
recordation. This revision also deletes the address for the now-defunct
Copyright Arbitration Royalty Panel (CARP). See 72 FR 45071 (August 10,
2007). The Office received no objections to this revision.
List of Subjects in 37 CFR Part 201
Copyright.
Final Regulations
For the reasons set forth above, the Copyright Office amends part
201 of title 37 of the Code of Federal Regulations as follows:
PART 201 - GENERAL PROVISIONS
0
1.The authority citation for part 201 continues to read as follows:
Authority: 17 U.S.C. 702.
0
2.Section 201.1 is amended by revising paragraph (b)(2) to read as
follows:
Sec. 201.1 Communication with the Copyright Office.
* * * * *
(b)* * *
(2)Notices of Termination. Notices of termination submitted for
recordation should be mailed to Copyright Office, Notices of
Termination, P.O. Box 71537, Washington, DC 20024-1537.
Sec. 201.3 [Amended]
0
3.Amend Sec. 201.3(c)(16) by removing the phrase, ``Recordation of
document, including a Notice of Intent to Enforce (NIE) (single
title),'' and adding in its place the phrase ``Recordation of document
(single title), e.g. a Notice of Termination or a Notice of Intent to
Enforce (NIE)''.
0
4.Amend Sec. 201.4 by revising paragraph (c)(3) to read as follows:
Sec. 201.4 Recordation of transfers and certain other documents.
* * * * *
(c)* * *
(3)To be recordable, the document must be legible and capable of
being imaged or otherwise reproduced in legible copies by the
technology employed by the Office at the time of submission.
* * * * *
0
5.
Section 201.10(f) is amended as follows:a. By adding paragraph
(f)(1)(iii);
b. By redesignating paragraph (f)(4) as (f)(5);
c. By adding a new paragraph (f)(4);
d. By revising redesignated paragraph (f)(5); and
e. By adding paragraph (f) (6).
The revisions and additions to Sec. 201.10 read as follows:
Sec. 201.10 Notices of termination of transfers and licenses.
* * * * *
(f)* * *
(1)* * *
(iii)The copy submitted for recordation must be legible per the
requirements of Sec. 201.4(c)(3).
* * * * *
(4)Notwithstanding anything to the contrary in this section, the
Copyright Office reserves the right to refuse recordation of a notice
of termination if, in the judgment of the Copyright Office, such notice
of termination is untimely. If a document is submitted as a notice of
termination after the statutory deadline has expired, the Office will
offer to record the document as a ``document pertaining to copyright''
pursuant to Sec. 201.4(c)(3), but the Office will not index the
document as a notice of termination. Whether a document so recorded is
sufficient in any instance to effect termination as a matter of law
shall be determined by a court of competent jurisdiction.
(5)A copy of the notice of termination shall be recorded in the
Copyright Office before the effective date of termination, as a
condition to its taking effect. However, the fact that the Office has
recorded the notice does not mean that it is otherwise sufficient under
the law. Recordation of a notice of termination by the Copyright Office
is without prejudice to any party claiming that the legal and formal
requirements for issuing a valid notice have not been met.
(6)Notices of termination should be submitted to the address
specified in Sec. 201.1(b)(2).
Dated: March 16, 2009
Marybeth Peters,
Register of Copyrights.
Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. E9-6649 Filed 3-24-09; 8:45 am]
BILLING CODE 1410-30-S