[Code of Federal Regulations]
[Title 37, Volume 1]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 37CFR202.22]

[Page 580-583]
 
              TITLE 37--PATENTS, TRADEMARKS, AND COPYRIGHTS
 
                                CONGRESS
 
PART 202_PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT--Table of Contents
 
Sec. 202.22  Acquisition and deposit of unpublished audio and audiovisual transmission programs.

    (a) General. This section prescribes rules pertaining to the 
acquisition of phonorecords and copies of unpublished audio and 
audiovisual transmission programs by the Library of Congress under 
section 407(e) of title 17 of the United States Code, as amended. It 
also prescribes rules pertaining to the use of such phonorecords and 
copies in the registration of claims to copyright, under section 408(b).
    (b) Definitions. For purposes of this section:
    (1) The terms copies, fixed, phonorecords, publication, and 
transmission program and their variant forms, have the meanings given to 
them in section 101 of title 17. The term network station has the 
meaning given it in section 111(f) of title 17. For the purpose of this 
section, the term transmission includes transmission via the Internet, 
cable, broadcasting, and satellite systems, and via any other existing 
or future devices or processes for the communication of a performance or 
display whereby images or sounds are received beyond the place from 
which they are sent.
    (2) Title 17 means title 17 of the United States Code, as amended.
    (c) Recording of transmission programs. (1) Library of Congress 
employees, including Library of Congress contractors, acting under the 
general authority of the Librarian of Congress, may make a fixation of 
an unpublished audio or audiovisual transmission program directly from a 
transmission to the public in the United States, in accordance with 
subsections 407(e)(1) and (4) of title 17 of the United States Code. The 
choice of programs selected for fixation shall be based on the Library 
of Congress's acquisition policies in effect at the time of fixation. 
Specific notice of an intent to record a transmission program will 
ordinarily not be given. In general, the Library of Congress will seek 
to record a substantial portion of the television programming 
transmitted by noncommercial educational broadcast stations as defined 
in section 397 of title 47 of the United States

[[Page 581]]

Code, and will record selected programming transmitted by commercial 
television broadcast stations, both network and independent. The Library 
will also record a selected portion of the radio programming transmitted 
by commercial and noncommercial broadcast stations. Additionally, the 
Library will record a selected portion of unpublished Internet, cable 
and satellite programming transmitted to the public in the United 
States.
    (2) Upon written request addressed to the Chief, Motion Picture, 
Broadcasting and Recorded Sound Division by a broadcast station or other 
owner of the right of transmission, the Library of Congress will inform 
the requestor whether a particular transmission program has been 
recorded by the Library.
    (3) The Library of Congress will not knowingly record any unfixed or 
published transmission program under the recording authority of section 
407(e) of title 17 of the United States Code.
    (4) The Library of Congress is entitled under this paragraph (c) to 
presume that a radio program transmitted to the public in the United 
States has been fixed but not published at the time of transmission, and 
that a television program transmitted to the public in the United States 
by a noncommercial educational broadcast station as defined in section 
397 of title 47 of the United States Code has been fixed but not 
published.
    (5) The presumption established by paragraph (c)(4) of this section 
may be overcome by written declaration and submission of appropriate 
documentary evidence to the Chief, Motion Picture, Broadcasting and 
Recorded Sound Division, either before or after recording of the 
particular transmission program by the Library of Congress. Such written 
submission shall contain:
    (i) The identification, by title and time of broadcast, of the 
transmission program in question;
    (ii) A brief statement declaring either that the program was not 
fixed or that it was published at the time of transmission;
    (iii) If it is declared that the program was published at the time 
of transmission, a brief statement of the facts of publication, 
including the date and place thereof, the method of publication, the 
name of the owner of the right of first publication, and whether the 
work was published in the United States; and
    (iv) The actual handwritten signature of an officer or other duly 
authorized agent of the organization which transmitted the program in 
question.
    (6) A declaration that the program was unfixed at the time of 
transmission shall be accepted by the Library of Congress, unless the 
Library can cite evidence to the contrary, and the copy or phonorecord 
will either be
    (i) Erased; or
    (ii) Retained, if requested by the owner of copyright or of any 
exclusive right, to satisfy the deposit provision of section 408 of 
title 17 of the United States Code.
    (7) If it is declared that the program was published at the time of 
transmission, the Library of Congress is entitled under this section to 
retain the copy or phonorecord to satisfy the deposit requirement of 
section 407(a) of title 17 of the United States Code.
    (8) The Library of Congress shall maintain a list of the radio, 
cable, Internet and satellite transmission programs that the Library has 
recorded on the Motion Picture, Broadcasting and Recorded Sound Division 
Web site at http://www.loc.gov/rr/record/ for audio transmission 
programs, or http://www.loc.gov/rr/mopic/ for audiovisual transmission 
programs, and, in making fixations of such unpublished transmission 
programs, shall identify a program that the Library has recorded by 
including that transmission program on the list no later than fourteen 
days after such fixation has occurred. The Library of Congress in making 
fixations of unpublished television transmission programs transmitted by 
commercial broadcast stations shall not do so without notifying the 
transmitting organization or its agent that such activity is taking 
place. In the case of television network stations, the notification will 
be sent to the particular network. In the case of any other commercial 
television broadcasting station, the notification will be sent to the 
particular broadcast station that has transmitted, or will transmit, the 
program. Such notice shall, if possible,

[[Page 582]]

be given by the Library of Congress prior to the time of broadcast. In 
every case, the Library of Congress shall transmit such notice no later 
than fourteen days after such fixation has occurred. Such notice shall 
contain:
    (i) The identification, by title and time of broadcast, of the 
transmission program in question;
    (ii) A brief statement asserting the Library of Congress' belief 
that the transmission program has been, or will be by the date of 
transmission, fixed and is unpublished, together with language 
converting the notice to a demand for deposit under section 407 (a) and 
(b) of title 17 of the United States Code, if the transmission program 
has been published in the United States.
    (9) The notice required by paragraph (c)(8) of this section shall 
not cover more than one transmission program except that the notice may 
cover up to thirteen episodes of one title if such episodes are 
generally scheduled to be broadcast at the same time period on a regular 
basis, or may cover all the episodes comprising the title if they are 
scheduled to be broadcast within a period of not more than two months.
    (d) Demands for deposit of a transmission program. (1) The Register 
of Copyrights may make a written demand upon the owner of the right of 
transmission in the United States to deposit a copy or phonorecord of a 
specific transmission program for the benefit of the Library of Congress 
under the authority of section 407(e)(2) of title 17 of the United 
States Code.
    (2) The Register of Copyrights is entitled to presume, unless clear 
evidence to the contrary is proffered, that the transmitting 
organization is the owner of the United States transmission right.
    (3) Notices of demand shall be in writing and shall contain:
    (i) The identification, by title and time of broadcast, of the work 
in question;
    (ii) An explanation of the optional forms of compliance, including 
transfer of ownership of a copy or phonorecord to the Library, lending a 
copy or phonorecord to the Library for reproduction, or selling a copy 
or phonorecord to the Library at a price not to exceed the cost of 
reproducing and supplying the copy or phonorecord;
    (iii) A ninety-day deadline by which time either compliance or a 
request for an extension of a request to adjust the scope of the demand 
or the method for fulfilling it shall have been received by the Register 
of Copyrights;
    (iv) A brief description of the controls which are placed on the use 
of the copies or phonorecords;
    (v) A statement concerning the Register's perception of the 
publication status of the program, together with language converting 
this demand to a demand for a deposit, under 17 U.S.C. 407, if the 
recipient takes the position that the work is published; and
    (vi) A statement that a compliance copy, or in the case of an audio 
transmission program, a compliance phonorecord, must be made and 
retained if the notice is received prior to transmission.
    (4) With respect to paragraph (d)(3)(ii) of this section, the sale 
of a copy or phonorecord in compliance with a demand of this nature 
shall be at a price not to exceed the cost to the Library of reproducing 
and supplying the copy or phonorecord. The notice of demand should 
therefore inform the recipient of that cost and set that cost, plus 
reasonable shipping charges, as the maximum price for such a sale.
    (5) Copies and phonorecords transferred, lent, or sold under 
paragraph (d) of this section shall be of sound physical condition as 
described in Appendix A to this section.
    (6) Special relief. In the case of any demand made under paragraph 
(d) of this section the Register of Copyrights may, after consultation 
with other appropriate officials of the Library of Congress and upon 
such conditions as the Register may determine after such consultation,
    (i) Extend the time period provided in subparagraph (d)(3)(iii);
    (ii) Make adjustments in the scope of the demand; or
    (iii) Make adjustments in the method of fulfilling the demand. Any 
decision as to whether to allow such extension or adjustments shall be 
made by the Register of Copyrights after consultation with other 
appropriate officials of the Library of Congress and shall be

[[Page 583]]

made as reasonably warranted by the circumstances. Requests for special 
relief under paragraph (d) of this section shall be made in writing to 
the Copyright Acquisitions Division, shall be signed by or on behalf of 
the owner of the right of transmission in the United States and shall 
set forth the specific reasons why the request should be granted.
    (e) Disposition and use of copies and phonorecords. (1) All copies 
and phonorecords acquired under this section shall be maintained by the 
Motion Picture, Broadcasting and Recorded Sound Division of the Library 
of Congress. The Library may make one archival copy or phonorecord of a 
program which it has fixed under the provisions of section 407(e)(1) of 
title 17 of the United States Code and paragraph (c) of this section.
    (2) All copies and phonorecords acquired or made under this section, 
except copies and phonorecords of transmission programs consisting of a 
regularly scheduled newscast or on-the-spot coverage of news events, 
shall be subject to the following restrictions concerning copying and 
access: in the case of television or other audiovisual transmission 
programs, copying and access are governed by Library of Congress 
Regulation 818-17, Policies Governing the Use and Availability of Motion 
Pictures and Other Audiovisual Works in the Collections of the Library 
of Congress, or its successors; in the case of audio transmission 
programs, copying and access are governed by Library of Congress 
Regulation 818-18.1, Recorded Sound Listening and Duplication Services, 
or its successors. Transmission programs consisting of regularly 
scheduled newscasts or on-the-spot coverage of news events are subject 
to the provisions of the ``American Television and Radio Archives Act,'' 
2 U.S.C. 170, and such regulations as the Librarian of Congress shall 
prescribe.
    (f) Registration of claims to copyright. (1) Copies and phonorecords 
fixed by the Library of Congress under the provisions of paragraph (c) 
of this section may be used as the deposit for copyright registration 
provided that:
    (i) The application and fee, in a form acceptable for registration, 
is received by the Copyright Office not later than ninety days after 
transmission of the program, and
    (ii) Correspondence received by the Copyright Office in the envelope 
containing the application and fee states that a fixation of the instant 
work was made by the Library of Congress and requests that the copy or 
phonorecord so fixed be used to satisfy the registration deposit 
provisions.
    (2) Copies and phonorecords transferred, lent, or sold to the 
Library of Congress under the provisions of paragraph (d) of this 
section may be used as the deposit for copyright registration purposes 
only when the application and fee, in a form acceptable for 
registration, accompany, in the same container, the copy or phonorecord 
lent, transferred, or sold, and there is an explanation that the copy or 
phonorecord is intended to satisfy both the demand issued under section 
407(e)(2) of title 17 of the United States Code and the registration 
deposit provisions.
    (g) Agreements modifying the terms of this section. (1) The Library 
of Congress may, at its sole discretion, enter into an agreement whereby 
the provision of copies or phonorecords of unpublished audio or 
audiovisual transmission programs on terms different from those 
contained in this section is authorized.
    (2) Any such agreement may be terminated without notice by the 
Library of Congress.

(17 U.S.C. 407, 408, 702)

[48 FR 37208, Aug. 17, 1983, as amended at 56 FR 7815, Feb. 26, 1991; 60 
FR 34168, June 30, 1995; 64 FR 36575, July 7, 1999; 66 FR 34373, June 
28, 2001; 69 FR 62411, Oct. 26, 2004]