[Federal Register Volume 75, Number 227 (Friday, November 26, 2010)]
[Proposed Rules]
[Pages 72771-72773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29743]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2010-5]
Gap in Termination Provisions
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: The Copyright Office is proposing to amend its regulations
governing notices of termination of certain grants of transfers and
licenses of copyright under section 203 of the Copyright Act of 1976.
The amendments are intended to clarify the recordation practices of the
Copyright Office regarding the content of section 203 notices of
termination and the timeliness of their service and recordation,
including a clarification that the Office will accept for recordation
under section 203 a notice of termination of a grant agreed to before
January 1, 1978 as long as the work that is the subject of the grant
was not created before 1978. Whether such notices of termination fall
within the scope of section 203 will ultimately be a matter to be
resolved by the courts.
DATES: Comments on the Notice of Proposed Rulemaking and Requests for
Comments are due on or before December 27, 2010.
ADDRESSES: The Copyright Office strongly prefers that comments be
submitted electronically. A comment page containing a comment form is
posted on the Copyright Office Web site at http://www.copyright.gov/docs/termination. The Web site interface requires submitters to
complete a form specifying name and organization, as applicable, and to
upload comments as an attachment via a browse button. To meet
accessibility standards, all comments must be uploaded in a single file
in either the Adobe Portable Document File (PDF) format that contains
searchable, accessible text (not an image); Microsoft Word;
WordPerfect; Rich Text Format (RTF); or ASCII text file format (not a
scanned document). The maximum file size is 6 megabytes (MB). The name
of the submitter and organization should appear on both the form and
the face of the comments. All comments will be posted publicly on the
Copyright Office Web site exactly as they are received, along with
names and organizations. If electronic submission of comments is not
feasible, please contact the
[[Page 72772]]
Copyright Office at 202-707-8125 for special instructions.
FOR FURTHER INFORMATION CONTACT: Amanda Wilson Denton, Counsel for
Policy and International Affairs, by telephone at 202-707-8125 or by
electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
Background
The Copyright Act gives authors (and some heirs, beneficiaries and
representatives who are specified by statute) the right to terminate
certain grants of transfers or licenses within the time frames set
forth in the statute and subject to the execution of certain conditions
precedent. Termination rights (also referred to as ``recapture
rights'') are equitable accommodations under the law. They allow
authors or their heirs a second opportunity to share in the economic
success of their works. Codified in sections 304(c), 304(d) and 203 of
Title 17, respectively, they encompass grants made before as well as
after January 1, 1978 (the effective date of the 1976 Copyright Act).
However, the provisions do not apply to copyrights in works made for
hire or grants made by will. Sections 304(c) and 304(d) establish
termination rights for works subject to grants of transfers or licenses
of copyright (or of any right under a copyright) made before January 1,
1978, the effective date of the 1976 Copyright Act. Section 203, which
is the subject of this proposed rulemaking, establishes termination
rights for works subject to grants of transfers or licenses executed by
the author on or after the effective date of the 1976 Copyright Act.
This proposed rulemaking is intended to address a narrow fact
pattern that was the subject of a notice of inquiry after some authors
and their representatives brought concerns to the attention of the
Copyright Office and some Congressional Offices. In a Federal Register
Notice dated March 29, 2010 (75 FR 15390), the Office sought comments
as to whether or how the termination provisions apply in circumstances
where a grant was agreed to prior to January 1, 1978, but the work in
question was created on or after January 1, 1978. In response to the
Notice of Inquiry, the Copyright Office received sixteen initial
comments and nine reply comments. These comments are available online
on the Copyright Office Web site, at http://www.copyright.gov/docs/termination/.
Several of those commenters took the position that the termination
right provided in section 203 of the Copyright Act should be available
under the circumstances in question. They based this position on a
number of legal and policy arguments, prominent among which was the
argument that a grant is not fully executed under the law until the
relevant work has been created. Therefore, pre-1978 grants for works
not created until January 1, 1978 or later should be subject to
termination under section 203. See, e.g., Comment of Jane C. Ginsburg,
Columbia University Law School at page 1; and Comment of Kenneth D.
Freundlich, Freundlich Law, and Neil W. Netanel, UCLA Law School, at
pages 5-6. This argument is closely related to the idea that the rights
created by title 17 can vest only in actual works of authorship, making
the creation date of the work central to the point in time at which any
right under the Copyright Act, including the termination right, may be
transferred. See, e.g., Comment of Randall D. Wixen, Wixen Music
Publishing, Inc., at 1. Several commenters also cited the legislative
history of the 1976 Copyright Act and the express exceptions that are
found within the termination provisions as evidence that Congress did
not intend to preclude termination of pre-1978 grants of works created
on or after January 1, 1978. See, e.g., Comment of Bill Gable, Law
Offices of Bill Gable, at page 2; and Comment of Niels Schaumann,
William Mitchell College of Law, at page 4.
At least one comment, however, expressed skepticism that section
203 should apply to any fact patterns in which grants were made prior
to January 1, 1978. It observed that there is some evidence that
``Congress may have intended the term executed to mean signed'' in
other sections of the Copyright Act and that prior to the enactment of
the Copyright Act of 1976, publications by the Copyright Office had
expressed views consistent with the conclusion that a grant should be
considered to be executed on the date the grant was signed. See Reply
Comment of the Recording Industry Association of America, Inc.
(``RIAA''), at pages 2-3.
Based on the comments received, the Copyright Office believes that
there are legitimate grounds to assert that, in the case of a grant
signed (or, in the case of an oral license, agreed to) before January
1, 1978 regarding rights in a work not created until January 1, 1978 or
later, such a grant cannot be ``executed'' until the work exists.
Therefore, the Office will record a notice of termination in such a
case so long as the notice states that the grant was executed on a
specified date that is on or after January 1, 1978. A person serving
and submitting a notice of termination based on the rationale described
above would be justified in including in the notice, as the date of
execution of the grant, the date that the work was created. For
purposes of clearly identifying the grant being terminated, it may be
useful also to state the date the grant was signed. The Office's
recordation of such notices of termination is without prejudice as to
how a court might ultimately rule on whether the document is a notice
of termination within the scope of section 203. See 37 CFR
201.10(f)(5).
Through the proposed regulatory amendments, the Office seeks to
provide immediate practical guidance in light of the fact that the
first deadlines for serving notices of section 203 terminations for
grants executed in 1978 (if the terminating party wishes to terminate
on the earliest possible date) will begin to expire next year. The
amendments clarify that, consistent with existing recordation
practices, the Office reserves the right to refuse a document for
recordation as a section 203 notice of termination if the date of
execution of the grant, as reflected in the document submitted as a
notice of termination, falls before January 1, 1978. This practice is
consistent with the law (17 U.S.C. 203(a)) and the existing regulations
(37 CFR 201.10(b)(2)). The proposed amendments to the regulations
underscore the consequences of failure on the part of an author or his
heirs to comply with this aspect of section 203(a) of the Copyright
Act, which can prevent recordation of the document as a notice of
termination. Failure to record a notice of termination in a timely
manner is a fatal error that will prevent termination from taking
effect.
The Office also takes the opportunity in this proposed rulemaking
to clarify certain circumstances under which the Office will refuse to
index as notices of termination documents submitted under section 203,
for reason of certain procedural failures drawn from the clear language
of the Copyright Act. These circumstances include a date of execution
of the grant that falls before January 1, 1978 (as discussed above), an
effective date of termination that does not fall within the allowed
statutory period (17 U.S.C. 203(a)(3)), improperly timed service of the
notice of termination (17 U.S.C. 203(a)(4)(A)), or submission of
documents for recordation as notice of termination on or after the
effective date of termination (17 U.S.C. 203(a)(4)(A)). These
circumstances are not intended to be an exhaustive list of procedural
failures that may result in failure to record notices of termination.
[[Page 72773]]
List of Subjects in 37 CFR Part 201
Copyright.
Proposed Regulations
In consideration of the foregoing, the Copyright Office proposes to
amend part 201 of 37 CFR, as follows:
PART 201--GENERAL PROVISIONS
1. The authority citation for part 201 reads as follows:
Authority: 17 U.S.C. 702; Section 201.10 also issued under 17
U.S.C. 203 and 304.
2. Amend Sec. 201.10 by revising paragraph (f)(4) as follows:
Sec. 201.10 Notices of termination of transfers and licenses.
* * * * *
(f) * * *
(4) Notwithstanding anything to the contrary in this section, the
Copyright Office reserves the right to refuse recordation of a notice
of termination as such if, in the judgment of the Copyright Office,
such notice of termination is untimely. Conditions under which a notice
of termination will be considered untimely include: the date of
execution stated therein does not fall on or after January 1, 1978, as
required by section 203(a) of title 17, United States Code; the
effective date of termination does not fall within the five-year period
described in section 203(a)(3) of title 17, United States Code; or the
documents submitted indicate that the notice of termination was served
less than two or more than ten years before the effective date of
termination. If a notice of termination is untimely or if a document is
submitted for recordation as a notice of termination on or after the
effective date of termination, 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. Any dispute as to 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.
* * * * *
Dated: November 19, 2010.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 2010-29743 Filed 11-24-10; 8:45 am]
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