[Federal Register Volume 60, Number 86 (Thursday, May 4, 1995)]
[Rules and Regulations]
[Pages 21983-21984]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11045]



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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 202

[Docket No. 95-4]


Modification of Appeal Procedure

AGENCY: Library of Congress, Copyright Office.

ACTION: Notice of policy decision.

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SUMMARY: The Copyright Office of the Library of Congress issues this 
Policy Decision modifying the appeal procedure regarding refusals to 
register a copyright claim. Currently, this procedure is specified in 
Compendium II of Copyright Office Practices and an applicant whose 
claim is rejected is entitled to two reconsiderations, each handled 
within the Examining Division. The modified procedure establishes an 
interim system with a Board of Appeals to reconsider the second appeal 
that is the final agency action.

EFFECTIVE DATE: June 5, 1995.

FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Acting General 
Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station, 
Washington, D.C. 20024. Telephone: (202) 707-8380. Telefax: (202) 707-
8366.

SUPPLEMENTARY INFORMATION:

I. Background

    One of the most significant responsibilities assigned the Copyright 
Office by Title 17 of the U.S. Code is the registration of copyright 
claims. Currently, the Copyright Office registers slightly more than 
600,000 copyright claims annually, and refuses to register a small 
percentage of these.
    Subsections 410(a) and (b) of the copyright law determine the 
parameters of the registration system:

    (a) When, after examination, the Register of Copyrights 
determines that, in accordance with the provisions of this title, 
the material deposited constitutes copyrightable subject matter and 
that the other legal and formal requirements of this title have been 
met, the Register shall register the claim and issue to the 
applicant a certificate of registration under the seal of the 
Copyright Office. The certificate shall contain the information 
given in the application, together with the number and effective 
date of the registration.
    (b) In any case in which the Register of Copyrights determines 
that, in accordance with the provisions of this title, the material 
deposited does not constitute copyrightable subject matter or that 
the claim is invalid for any other reason, the Register shall refuse 
registration and shall notify the applicant in writing of the 
reasons for such refusal.

    In administering these provisions, the Copyright Office usually 
accepts as true the facts given by the applicant.1 The decision to 
register or not rests on a determination of whether a prima facie valid 
copyright claim has been submitted under the provisions of the 
Copyright Act.

    \1\Section 108.05 of Compendium II of Copyright Office Practices 
provides: ``Factual determinations. In connection with its examining 
and related activities, the Copyright Office does not ordinarily 
make findings of fact with respect to publication or any other thing 
done outside the Copyright Office.'' This practice is qualified by 
section 108.05(b) providing: ``Administrative notice. The Copyright 
Office may take notice of matters of general knowledge. It may use 
such knowledge as the basis for questioning applications that appear 
to contain or be based upon inaccurate or erroneous information.''
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    An applicant may appeal a refusal to register using the appeal 
procedure specified in the Compendium of Copyright Office Practices. 
Under this practice, an applicant whose claim has been denied 
registration is entitled to two reconsideration, each handled within 
the Examining Division. Specifically, the procedure provides:

    Refusal to register: request for reexamination. When the 
Copyright Office has refused a claim as submitted, it notifies the 
applicant in writing of the refusal to register. After such 
notification, the applicant may set forth in writing his or her 
objections to the refusal and request that the Office reconsider its 
action. If the claim is refused [[Page 21984]] after 
reconsideration, the head of the appropriate Examining Division 
section will send the applicant written notification of the reasons 
for refusal. The applicant may again request reconsideration. If the 
claim is refused again, the Chief of the Examining Division will 
notify the applicant in writing of the reasons. The Division Chief's 
decision constitutes final agency action.

Section 606.04 Compendium II of Copyright Office Practices.

II. Circumstances Leading to Modification

    Although the Office's practice concerning appeals is long-standing, 
we have periodically considered modifying it. A number of commentators 
have criticized the current practice on the grounds that containment 
within the Examining Division leads to an overly closed system. Even 
under the existing practice, however, there has been some discussion of 
particular cases with the General Counsel or the Register. More 
recently, the Library of Congress appointed an Advisory Committee on 
Copyright Registration and Deposit, (ACCORD); in their meetings, 
members of this Committee criticized the appeals procedure and 
suggested that it be changed. Library of Congress, Advisory Committee 
on Copyright Registration and Deposit, 31 (1993).
    The Copyright Office is committed to improving this procedure and 
will be publishing a Notice of Proposed Rulemaking seeking public 
comment on legal and administrative issues associated with establishing 
a more formal procedure at a later date. Meanwhile, as a first step, 
the Office has decided to establish a Board of Appeals within the 
Copyright Office as an interim system. By instituting this Board, we 
will gain experience in administering an alternative system.
    After the Office has some practical experience with the new system, 
we will make a detailed proposal and seek public comment. Following 
review of these comments, the Copyright Office will publish the new 
appeal procedure as a regulation. Although we are now adopting as an 
interim system the Board of Appeals described below, the precise nature 
of the final appeal procedure will not be established until we publish 
final rules. Anyone who wishes to suggest specific guidelines for our 
consideration before the proposed rulemaking should submit them to the 
Board of Appeals, Copyright GC/I&R, P.O. Box 70400, Southwest Station, 
Washington, D.C. 20024.

III. Policy Decision

    The Copyright Office's appeal procedure set out in Sec. 606.04 of 
the Compendium is amended to read as follows:

    Appeals of refusal to register: request for reconsideration. 
When the Copyright Office has refused to register a claim as 
submitted, it notifies the applicant in writing of the refusal to 
register. After such notification, the applicant may set forth in 
writing his or her objections to the refusal and request that the 
Office reconsider its action. The appeal letter should be addressed 
to the appropriate section of the Examining Division, Copyright 
Office, Washington, D.C. 20559. The first request for 
reconsideration must be received in the Copyright Office within 120 
days of the date of the Office's first refusal to register, and the 
envelope containing the request should be clearly marked: FIRST 
APPEAL/EXAMINING DIVISION.
    If the claim is refused after reconsideration, the head of the 
appropriate section of the Examining Division sends the applicant 
written notification of the reasons for refusal. The applicant may 
again request reconsideration in writing. This second appeal must be 
received in the Copyright Office within 120 days of the date of the 
Office's refusal of the first appeal, and be directed to the Board 
of Appeals at the following address: Copyright GC/I&R, P.O. Box 
70400, Southwest Station, Washington, D.C., 20024. The Board of 
Appeals shall consist of the Register of Copyrights, the General 
Counsel, and the Chief of the Examining Division, or their 
respective designees. The Board shall consider the second appeal and 
render a final decision. The designated Chair of the Board of 
Appeals will write the applicant setting out the reasons for 
acceptance or denial of the claim. The Appeals Board's decision 
constitutes final agency action.

    Dated: April 27, 1995.
Marybeth Peters,
Register of Copyrights.
    Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 95-11045 Filed 5-3-95; 8:45 am]
BILLING CODE 1410-30-P