[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: 37CFR354.1]

[Page 707-708]
 
              TITLE 37--PATENTS, TRADEMARKS, AND COPYRIGHTS
 
        CHAPTER III--COPYRIGHT ROYALTY BOARD, LIBRARY OF CONGRESS
 
PART 354_SUBMISSIONS TO THE REGISTER OF COPYRIGHTS--Table of Contents
 
Sec. 354.1  Material questions of copyright law.

    (a) Discretionary referrals. The Copyright Royalty Judges may seek 
guidance from the Register of Copyrights with respect to a material 
question of substantive law, concerning an interpretation or 
construction of those provisions of the Copyright Act, that arises in 
the course of their proceedings.
    (b) How presented. A question of substantive law may be referred to 
the Register of Copyrights at the request of one or more of the 
Copyright Royalty Judges. A question of substantive law may also be 
referred to the Register of Copyrights as a request submitted by motion 
of a participant, provided that one or more of the Copyright Royalty 
Judges agrees with the participant's request.
    (1) Referral by Judges. One or more of the Copyright Royalty Judges 
may refer what he or she believes to be a material question of 
substantive law to

[[Page 708]]

the Register of Copyrights at any time during a proceeding by issuing a 
written referral that is made part of the record of that proceeding. The 
referral will state the issue(s) to be referred and the schedule for the 
filing of briefs by the parties of the issue(s). After the briefs and 
other relevant materials are received, they will be transmitted to the 
Register of Copyrights.
    (2) Motion by participant. Any participant may submit a motion to 
the Copyright Royalty Judges (but not to the Register of Copyrights) 
requesting their referral to the Register of Copyrights a question that 
the participant believes would be suitable for referral under paragraph 
(a) of this section.
    (i) Content. The motion should be captioned ``Motion of 
[Participant(s)] Requesting Referral of Material Question of Substantive 
Law.'' The motion should set forth, at the outset, the precise legal 
question for which the moving party is seeking interlocutory referral to 
the Register of Copyrights. The motion should then proceed to explain, 
with brevity, why the issue meets the criteria for potential referral 
under paragraph (a) of this section and why the interests of fair and 
efficient adjudication would be best served by obtaining interlocutory 
guidance from the Register of Copyrights. The motion should not include 
argument on the merits of the issue, but may include a suggested 
schedule of briefing that would make reasonable provision for comments 
and legal arguments, in such a way as to avoid delay and duplication.
    (ii) Time of motion. A motion for referral of a material question of 
substantive law to the Register of Copyrights should be filed as soon as 
possible in the relevant proceeding, but no later than any deadline set 
by the Copyright Royalty Judges.
    (iii) Action on motion--(A) Referral granted. Upon consideration of 
a Motion Requesting Referral of Material Question of Substantive Law, if 
one or more of the Copyright Royalty Judges agrees with the request, the 
Chief Judge shall issue an appropriate referral. The referral will state 
the issue(s) to be referred and the schedule for the filing of briefs by 
the parties of the issue(s). After the briefs and other relevant 
materials are received, they will be transmitted to the Register of 
Copyrights.
    (B) Referral denied. If none of the Copyright Royalty Judges agrees 
with the request, the Board will issue an order denying the request 
which will provide the basis for the decision. A copy of any order 
denying a Motion Requesting Referral of Material Question of Substantive 
Law will be transmitted to the Register of Copyrights.
    (c) No effect on proceedings. The issuance of a request to the 
Register of Copyrights for an interpretive ruling under this part does 
not delay or otherwise affect the schedule of the participants' 
obligations in the relevant ongoing proceeding, unless that schedule or 
those obligations are expressly changed by order of the Copyright 
Royalty Judges.
    (d) Binding effect; time limit. The Copyright Royalty Judges will 
not issue a final determination in a proceeding where the discretionary 
referral of a question to the Register of Copyrights under this part is 
pending, unless the Register has not delivered the decision to the 
Copyright Royalty Judges within 14 days after the Register receives all 
of the briefs of the participants. If the decision of the Register of 
Copyrights is timely delivered to the Copyright Royalty Judges, the 
decision will be included in the record of the proceeding. The legal 
interpretation embodied in the timely delivered response of the Register 
of Copyrights in resolving material questions of substantive law is 
binding upon the Copyright Royalty Judges and will be applied by them in 
their final determination in the relevant proceeding.

[71 FR 53330, Sept. 11, 2006]