[Federal Register Volume 75, Number 59 (Monday, March 29, 2010)]
[Proposed Rules]
[Pages 15390-15391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6936]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
Gap in Termination Provisions; Inquiry
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of public inquiry; request for comments.
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SUMMARY: The Copyright Office is seeking comments regarding the
application of Title 17 to the termination of certain grants of
transfers or licenses of copyright, specifically those for which
execution of the grant occurred prior to January 1, 1978 and creation
of the work occurred on or after January 1, 1978. The Copyright Office
is seeking comments at this time because the deadlines for serving
notices of termination for 1978 grants will begin to expire in 2011 and
some stakeholders have raised questions with the Office and some
Congressional Offices.
DATES: Initial comments on the Notice of Inquiry and Requests for
Comments are due on or before April 30, 2010. Reply comments are due on
or before May 14, 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 Copyright Office at 202-707-1027 for
special instructions.
FOR FURTHER INFORMATION CONTACT: Maria Pallante, Associate Register,
Policy and International Affairs, by telephone at 202-707-1027 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, subject to the passage of time
set forth in the statute and 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). (The
provisions do not apply to copyrights in works made for hire or grants
made by will.)
This inquiry concerns a narrow set of facts that some authors and
their representatives have brought to the attention of the Copyright
Office and some Congressional Offices. Specifically, the Office is
interested in whether or how the termination provisions apply in
circumstances where the grant was executed prior to January 1, 1978,
but the work was created on or after January 1, 1978. For such works,
there appears to be some confusion and possible disagreement among some
stakeholders as to whether termination rights are exercisable in the
first place and, if they are, which statutory provision applies. In
seeking comments, the Office is aware that termination rights may only
be exercised during the window of time specified by statute and the
deadlines
[[Page 15391]]
for grants made in 1978 will begin to expire next year.
Termination provisions provide authors with a long-term insurance
policy on the value of their copyrights. The House Report accompanying
the 1976 Copyright Act states that the provisions are ``needed because
of the unequal bargaining position of authors, resulting in part from
the impossibility of determining a work's value until it has been
exploited.'' H.R. Rep. No. 94-1476, at 124 (1976). Termination rights
are put in motion by serving notice on the grantee. The notice must
state the effective date of the termination and must be served on the
grantee not less than two or more than ten years before that date. 17
U.S.C. 304(c)(4)(A); 304(d)(1); 203(a)(4)(A). The Register of
Copyrights, through regulations, has set forth additional core elements
that must be included in the notice, among them a statement as to
whether termination is being made under section 304(c), 304(d) or 203.
37 CFR 201.10(b)(1)(i) and (b)(2)(ii).
Section 304 (c) governs older works, specifically works in which a
copyright was subsisting in its first or renewal term as of January 1,
1978. It 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)
governs a smaller subset of pre-78 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 copyright terms 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 governs grants made under the ``new law.'' 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 or after
1978). Termination may be exercised at any time during a period of five
years beginning at the end of thirty-five years 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. Unlike
section 304, the termination right in section 203 applies only to
grants executed by authors. Section 203 terminations may be exercised
as of January 1, 2013, provided notice has been served no less than two
years prior.
Once the notice is served, a copy of the notice must be recorded
with the Copyright Office prior to the effective date of termination.
17 U.S.C. 304(c)(4)(A); 304(d)(1); 203(a)(4)(A). Upon receipt of the
notice, the Copyright Office undertakes a review of certain facts,
including whether the notice has been executed in a timely manner.
Because lateness is a fatal mistake \1\ under the law, the Office
reserves the right to refuse recordation of a notice of termination if,
in the judgment of the Office, such notice of termination is
untimely.\2\ 37 CFR 201.10(f)(4).
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\1\ By contrast, the regulations provide accommodations for
certain harmless errors. 37 CFR 201.10(e)(1)-(2).
\2\ 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.
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Subject of Inquiry
The Copyright Office seeks comment on the question of whether and
how Title 17 provides a termination right to authors (and other persons
specified by statute) when the grant was made prior to 1978 and the
work was created on or after January 1, 1978. For purposes of
illustration, please note the following examples:
Example 1: A composer signed an agreement with a music publisher
in 1977 transferring the copyrights to future musical compositions
pursuant to a negotiated fee schedule. She created numerous
compositions under the agreement between 1978 and 1983, some of
which were subsequently published by the publisher-transferee.
Several of these achieved immediate popular success and have been
economically viable ever since. The original contract has not been
amended or superseded.
Example 2: A writer signed an agreement with a book publisher
in 1977 to deliver a work of nonfiction. The work was completed and
delivered on time in 1979 and was published in 1980. The book's
initial print run sold out slowly, but because the author's
subsequent works were critically acclaimed, it was released with an
updated cover last year and is now a best seller. The rights
remained with the publisher all along and the original royalty
structure continues to apply.
Questions
In order to better understand the application of sections 304(c),
304(d) and 203 to the grants of transfers and licenses discussed above,
the Copyright Office seeks comments as follows:
A. Experience. Please describe any experience you have in
exercising or negotiating termination rights for pre-1978 grants of
transfers or licenses for works that were created on or after January
1, 1978.
B. Interpretation. Are the grants of transfers or licenses
discussed above terminable under Title 17 as currently codified? If so,
under which provision? What is the basis for your determination? Are
there state or federal laws other than copyright that are relevant? Is
delivery of the work by the grantor to the grantee relevant to the
question of termination? Is publication relevant?
C. Recommendations. Do you have any recommendations with respect to
the grants of transfers or licenses illustrated above?
D. Other Issues. Are there other issues with respect to the
application or exercise of termination provisions that you would like
to bring to our attention for future consideration?
Dated: March 24, 2010.
Marybeth Peters,
Register of Copyrights, U.S. Copyright Office.
[FR Doc. 2010-6936 Filed 3-26-10; 8:45 am]
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