[Federal Register Volume 63, Number 250 (Wednesday, December 30, 1998)]
[Rules and Regulations]
[Pages 71785-71788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-34430]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. 98-13]


Notice to Libraries and Archives of Normal Commercial 
Exploitation or Availability at Reasonable Price

AGENCY: Copyright Office, Library of Congress.

ACTION: Interim regulation with request for comments.

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SUMMARY: The Copyright Office of the Library of Congress is issuing 
interim regulations and requesting comment on the requirements by which 
a copyright owner or its agent may provide notice to libraries and 
archives that a published work in the final 20 years of its extended 
term of copyright is subject to normal commercial exploitation or that 
a copy or phonorecord of the work can be obtained at a reasonable 
price. The Office is issuing interim regulations in order to have the 
notice requirements in place on January 1, 1999. Final regulations will 
be promulgated following the Office's review of public comments.

EFFECTIVE DATE: The interim regulations are effective January 1, 1999. 
Comments must be submitted on or before February 15, 1999. Reply 
comments must be submitted on or before April 1, 1999.

ADDRESSES: An original and fifteen copies of the comments shall be 
delivered to: Office of the General Counsel, Copyright Office, LM-403, 
James Madison Memorial Building, 101 Independence Avenue, S.E., 
Washington, D.C., or mailed to: David O. Carson, General Counsel, 
Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, D.C. 
20024.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
Jennifer L. Hall, Senior Attorney, Copyright GC/I&R, P.O. Box 70400, 
Southwest Station, Washington, D.C. 20024. Telephone: (202) 707-8380. 
Facsimile: (202) 707-8366.

SUPPLEMENTARY INFORMATION:

Background

    On October 27, 1998, President Clinton signed into law the Sonny 
Bono Copyright Term Extension Act (``the Act''), Public Law 105-298, 
112 Stat. 2827 (1998). The Act amended the copyright law, title 17 
United States Code, to extend for an additional 20 years the term of 
copyright protection in the United States. With respect to the extended 
20-year term, the Act added a limited new exemption for certain 
libraries and archives in section 108 of the copyright law. Under new 
section 108(h), during the last 20 years of any term of copyright 
protection of a published work, a library or archives (including a 
nonprofit educational institution functioning as such), may reproduce, 
distribute, display, or perform in facsimile or digital form a copy or 
phonorecord of such work, or portions thereof, for purposes of 
preservation, scholarship, or research, if such library or archives has 
first determined, on the basis of a reasonable investigation, that 
certain conditions set forth in the law do not apply. 17 U.S.C. 
108(h)(1). Specifically, no reproduction, distribution, display, or 
performance is authorized under the subsection if: (A) the work is 
subject to normal commercial exploitation; (B) a copy or phonorecord of 
the work can be obtained at a reasonable price; or (C) the copyright 
owner or its agent provides notice pursuant to regulations promulgated 
by the Register of Copyrights that either of the conditions set forth 
in subparagraphs (A) and (B) applies. Id. 108(h)(2). The new exemption 
does not apply to unpublished works. Id. 108(h)(1). It also does not 
apply to subsequent uses by users other than the library or archives. 
Id. 108(h)(3).
    Under the interim regulations set forth at 37 CFR 201.39, copyright 
owners may file with the Copyright Office a Notice to Libraries and 
Archives of Normal Commercial Exploitation or Availability at 
Reasonable Price. The Notice shall be accompanied by a filing fee of 
$50 for the first work, and $20 for each additional work, made payable 
in check, money order or bank draft to the Register of Copyrights. The 
Office will not provide printed forms for the Notices, but will provide 
a required format, which is set out in Appendix A to this notice and 
will be available from the Copyright Office website (http://
lcweb.loc.gov/copyright). The regulations specify that the Notice must 
be provided on 8\1/2\ x 11 inch paper with a one-inch margin.
    Copyright owners or their agents may file the Notice at any time 
during the work's extended 20-year term, and thereafter a library or 
archives could not claim the exemption with respect to the identified 
work. Until such notice is filed, however, a library or archive is free 
to use a published work in its last 20 years of copyright term as 
provided under section 108(h) unless its reasonable investigation 
otherwise reveals that the work is subject to normal commercial 
exploitation or availability at a reasonable price. The Office is 
inquiring whether the final regulations should permit copyright owners 
to file a Notice for a work before its extended term begins and, if so, 
how much sooner.
    Due to the nature of the filing as a representation by the 
copyright owner that a particular work is subject to normal commercial 
exploitation or reasonable availability, the Notice to Librarians and 
Archives cannot be a one-time filing to cover the entire 20-year 
period. Instead, copyright owners will need to refile the Notice 
periodically (e.g., every five years) in order to reassert the facts of 
commercial availability or reasonable price with respect to the work. 
For purposes of the interim regulations, the Office is requiring a 
declaration under penalty of perjury by the copyright owner or its 
agent that the work identified is subject to normal commercial 
exploitation, or that a copy or phonorecord of the work is available at 
a reasonable price. The Office is also requiring contact information 
for the person or entity that can provide information concerning the 
work's normal commercial exploitation or availability at a reasonable 
price. Additional information concerning the work's commercial 
availability may be provided, but is not required. The Office is 
inquiring whether the Notice should require additional information with 
respect to a work's commercial availability.
    Because any number of works may share the same title, a copyright 
owner choosing to file a Notice to Libraries and Archives under these 
regulations will be required to identify his or her works by reference 
not only to the work's title, but also to the type of work (e.g., 
music, motion picture, book, photograph,

[[Page 71786]]

illustration, map, article in a periodical, painting, sculpture, sound 
recording, etc.); the edition, if any (e.g., first edition, second 
edition, teacher's edition) or version, if any (e.g., orchestral 
arrangement, English translation of French text); the author's name; 
the year of first publication; the year the work first secured federal 
copyright through publication with notice or registration; and the 
renewal registration number (except for foreign works in which 
copyright is restored pursuant to 17 U.S.C. 104A). The original 
copyright registration number may be provided but is not required. If a 
work is untitled, then the copyright owner will be required to provide 
a brief description of the work (e.g., black-and-white photo of train 
station in Cleveland, Ohio, 1923). The Notice must identify the 
copyright owner or the owner of exclusive rights on whose behalf the 
Notice is filed. If the copyright owner is not owner of all rights, 
then the Notice must specify the rights owned (e.g., the right to 
reproduce/distribute/ publicly display/publicly perform the work or to 
create a derivative work). Information on how the Office can contact 
the person submitting the notice is required. The Office is inquiring 
whether a new or amended Notice should be required if the copyright 
owner transfers or assigns rights in the work to another party or 
publisher, or if the information reported in a Notice otherwise 
changes.
    To accommodate copyright owners who wish to file Notices for a 
number of published works, a single Notice may be filed for a group of 
works that have entered their final 20 years of copyright term. Such a 
filing will be permitted for a filing fee of $50 for the first work and 
$20 for each additional work, provided that: (1) all the works are by 
the same author; (2) all the works are owned by the same copyright 
owner or owner of the exclusive rights therein (and if the claimant is 
not owner of all rights, the claimant must own the same rights with 
respect to all works in the group); (3) all the works first secured 
federal copyright in the same year, through either publication with 
notice or registration as an unpublished work; (4) all the works were 
first published in the same year; (5) the person or entity that the 
Copyright Office should contact concerning the Notice is the same for 
all the works; and (6) the person or entity that Libraries and Archives 
may contact concerning the work's normal commercial exploitation or 
availability at reasonable price is the same for all the works. Each of 
these conditions for group filing is necessary to properly identify the 
works, to facilitate processing of the Notices, and to make the 
information available for public inspection in a timely manner. The 
first work in a group will be identified using the same required format 
used for all Notices to Libraries and Archives, which will indicate 
whether the filing is a group, but each additional work in the group 
will be identified on a separate continuation sheet. The required 
format for the continuation sheet is set out in Appendix A to this 
notice and will be available from the Copyright Office website. The 
information in the Notices will be entered into the Copyright Office 
History Documents (COHD) file, which is publicly available, both at the 
Copyright Office and through the Copyright Office website (http://
lcweb.loc.gov/copyright).
    Because the extension of copyright term was effective upon 
enactment of the Act and because all terms of copyright run to the end 
of the calendar year in which they would otherwise expire, 17 U.S.C. 
304, the first works to be affected by term extension are those whose 
terms of protection would have expired on December 31, 1998. These 
include works that secured copyright in 1923 and were properly renewed 
in 1950-51, as well as certain foreign works whose copyrights were 
restored under 17 U.S.C. 104A. The additional 20 years of copyright 
protection for these works will commence on January 1, 1999. That date 
is the first date on which libraries and archives are entitled to 
exploit those works under the new section 108(h) exemption. In order to 
have regulations governing Notice to Libraries and Archives in place on 
that date, the Copyright Office is establishing interim regulations 
effective on January 1, 1999, and requesting comments for consideration 
before promulgating final regulations.

Questions for Public Comment

    The Copyright Office is requesting public comment on the following:
    1. For how long should a Notice to Libraries and Archives be 
effective? Should a copyright owner be required to refile the Notice to 
Libraries and Archives periodically? If so, what is the preferable time 
period?
    2. Should copyright owners be permitted to file the Notice to 
Libraries and Archives prior to the commencement of the final 20 years 
of copyright term? If so, how long before the commencement of the final 
20 years should they be permitted to file the Notice?
    3. Should the final regulations require that new Notices to 
Libraries and Archives be filed upon adoption of the final regulations, 
or should Notices filed pursuant to the interim regulations remain 
valid? The answer to this question is likely to depend on whether the 
final regulations require more information in the Notices than is 
required by the interim regulations.
    4. Besides the information set forth in Sec. 201.39(c) of the 
interim regulations, should a copyright owner provide any additional 
information in a Notice to Libraries and Archives? Should any of the 
information required or requested under the interim regulations not be 
required or requested under the final regulations? Should any of the 
optional information be required, or any of the required information 
made optional?
    5. Under the final regulations, what information should a copyright 
owner provide with respect to a work's normal commercial exploitation 
and/or availability at a reasonable price? Is it sufficient to require 
(1) a declaration under penalty of perjury by the copyright owner that 
a work is subject to normal commercial exploitation or availability at 
a reasonable price; and (2) contact information where libraries and 
archives may obtain further information on the work's exploitation or 
availability; and to provide an option for additional information 
concerning the work's commercial availability?
    6. If, after filing a Notice to Libraries and Archives, the 
copyright owner transfers or assigns a work, or transfers or assigns 
rights in a work, should the new copyright owner or its agent be 
required to submit a new or amended Notice? Should the regulations 
otherwise require the filing of an amended Notice in the event of a 
change in any information reported in the Notice?
    7. Are there types of works (e.g., individual contributions to a 
periodical or other collective work that may not have been separately 
registered) which will present particular issues or problems that must 
be specifically addressed in the regulations? What are those problems 
and how should they be addressed? Should any additional information be 
required with respect to such works?

List of Subjects in 37 CFR Part 201

    Copyright.

Interim Regulations

    For the reasons set forth in the preamble, Part 201 of Title 37 of 
the Code of Federal Regulations is amended to read as follows:

PART 201--GENERAL PROVISIONS

    1. The authority for Part 201 continues to read as follows:


[[Page 71787]]


    Authority: 17 U.S.C. 702.

    2. Section 201.39 is added to read as follows:


Sec. 201.39  Notice to Libraries and Archives of Normal Commercial 
Exploitation or Availability at Reasonable Price.

    (a) General. This section prescribes rules under which copyright 
owners or their agents may provide notice to qualified libraries and 
archives (including a nonprofit educational institution that functions 
as such) that a published work in its last 20 years of copyright 
protection is subject to normal commercial exploitation, or that a copy 
or phonorecord of the work can be obtained at a reasonable price, for 
purposes of section 108(h)(2) of title 17 of the United States Code.
    (b) Format. The Copyright Office provides a required format for a 
Notice to Libraries and Archives of Normal Commercial Exploitation or 
Availability at Reasonable Price, and for continuation sheets for group 
notices. The required format is set out in Appendix A to this section, 
and are available from the Copyright Office website (http://
lcweb.loc.gov/copyright). The Copyright Office does not provide printed 
forms. The Notice shall be in English (except for an original title, 
which may be in another language), typed or printed legibly in dark 
ink, and shall be provided on 8\1/2\ x 11 inch white paper with a one-
inch margin.
    (c) Required Content. A ``Notice to Libraries and Archives of 
Normal Commercial Exploitation or Availability at Reasonable Price'' 
shall be identified as such by prominent caption or heading, and shall 
include the following:
    (1) The acronym NLA in capital, and preferably bold, letters in the 
top right-hand corner of the page;
    (2) A check-box just below the acronym NLA indicating whether 
continuation sheets for additional works are attached;
    (3) The title of the work, or if untitled, a brief description of 
the work;
    (4) The author(s) of the work;
    (5) The type of work (e.g., music, motion picture, book, 
photograph, illustration, map, article in a periodical, painting, 
sculpture, sound recording, etc.);
    (6) The edition, if any (e.g., first edition, second edition, 
teacher's edition) or version, if any (e.g., orchestral arrangement, 
translation, French version). If there is no information relating to 
the edition or version of the work, the notice should so state;
    (7) The year of first publication;
    (8) The year the work first secured federal copyright through 
publication with notice or registration as an unpublished work;
    (9) The copyright renewal registration number (except this 
information is not required for foreign works in which copyright is 
restored pursuant to 17 U.S.C. 104A);
    (10) The name of the copyright owner (or the owner of exclusive 
rights);
    (11) If the copyright owner is not the owner of all rights, a 
specification of the rights owned (e.g., the right to reproduce/
distribute/publicly display/publicly perform the work or to prepare a 
derivative work);
    (12) The name, address, telephone number, fax number (if any) and 
e-mail address (if any) of the person or entity that the Copyright 
Office should contact concerning the Notice;
    (13) The full legal name, address, telephone number, fax number (if 
any) and e-mail address (if any) of the person or entity that Libraries 
and Archives may contact concerning the work's normal commercial 
exploitation or availability at reasonable price; and
    (14) A declaration made under penalty of perjury that the work 
identified is subject to normal commercial exploitation, or that a copy 
or phonorecord of the work is available at a reasonable price.
    (d) Additional content. A Notice to Libraries and Archives of 
Normal Commercial Exploitation or Availability at Reasonable Price may 
include the following:
    (1) The original copyright registration number of the work; and
    (2) Additional information concerning the work's normal commercial 
exploitation or availability at a reasonable price.
    (e) Signature. The Notice to Libraries and Archives of Normal 
Commercial Exploitation or Availability at Reasonable Price shall 
include the signature of the copyright owner or its agent. The 
signature shall be accompanied by the printed or typewritten name and 
title of the person signing the Notice, and by the date of signature.
    (f) Multiple works. A Notice to Libraries and Archives may be filed 
for more than one work. The first work shall be identified using the 
format required for all Notices to Libraries and Archives. Each 
additional work in the group must be identified on a separate 
continuation sheet. The required format for the continuation sheet is 
set out in Appendix B to this section, and is available from the 
Copyright Office website (http://lcweb.loc.gov/copyright). A group 
filing is permitted provided that:
    (1) All the works are by the same author;
    (2) All the works are owned by the same copyright owner or owner of 
the exclusive rights therein. If the claimant is not owner of all 
rights, the claimant must own the same rights with respect to all works 
in the group;
    (3) All the works first secured federal copyright in the same year, 
through either publication with notice or registration as an 
unpublished work;
    (4) All the works were first published in the same year;
    (5) The person or entity that the Copyright Office should contact 
concerning the Notice is the same for all the works; and
    (6) The person or entity that Libraries and Archives may contact 
concerning the work's normal commercial exploitation or availability at 
reasonable price is the same for all the works.
    (g)--Filing--(1) Method of Filing. The Notice to Libraries and 
Archives of Normal Commercial Exploitation or Availability at 
Reasonable Price should be addressed to: NLA, Library of Congress, 
Copyright Office, 101 Independence Avenue, SE., Washington, DC 20559-
6000. If delivered by hand, it should be delivered during normal 
business hours, 8:30 a.m. to 5:00 p.m., to the Public Information 
Office, Room LM-401, James Madison Memorial Building, Library of 
Congress, 101 Independence Avenue, SE., Washington, DC.
    (2) Amount. Each Notice shall be accompanied by a filing fee of 
$50, and (if more than one work is identified in the Notice), $20 for 
each additional work.
    (3) Method of Payment--(i) Checks, money orders, or bank drafts. 
The Copyright Office will accept checks, money orders, or bank drafts 
made payable to the Register of Copyrights. Remittances must be 
redeemable without service or exchange fees through a United States 
institution, must be payable in United States dollars, and must be 
imprinted with American Banking Association routing numbers. Postal 
money orders that are negotiable only at a post office and 
international money orders are not acceptable. CURRENCY IS NOT 
ACCEPTED.
    (ii) Copyright Office Deposit Account. The Copyright Office 
maintains a system of Deposit Accounts for the convenience of those who 
frequently use its services. The system allows an individual or firm to 
establish a Deposit Account in the Copyright Office and to make advance 
deposits into that

[[Page 71788]]

account. Deposit Account holders can charge copyright fees against the 
balance in their accounts instead of sending separate remittances with 
each request for service. For information on Deposit Accounts, visit 
the Copyright Office website or write: Copyright Office, Library of 
Congress, Washington, DC 20559-6000, and request a copy of Circular 5, 
``How to Open and Maintain a Deposit Account in the Copyright Office.''

Appendix A to Sec. 201.39--Required format of Notice to Libraries 
and Archives of Normal Commercial Exploitation or Availability at 
Reasonable Price

NLA
{time}  Check box if continuation sheets for additional works are 
attached.

Notice to Libraries and Archives of Normal Commercial Exploitation or 
Availability at Reasonable Price

    1. Title of the work (or, if untitled, a brief description of 
the work): ____________________.
    2. Author(s) of the work: ____________________.
    3. Type of work (e.g. music, motion picture, book, photograph, 
illustration, map, article in a periodical, painting, sculpture, 
sound recording, etc.): ____________________.
    4. Edition, if any (e.g., first edition, second edition, 
teacher's edition) or version, if any (e.g., orchestral arrangement, 
English translation of French text). If there is no information 
available relating to the edition or version of the work, the Notice 
should state, ``No information available'': ____________________.
    5. Year of first publication: __________.
    6. Year the work first secured federal copyright through 
publication with notice or registration as an unpublished work: 
__________.
    7. Copyright renewal registration number (not required for 
foreign works restored under 17 U.S.C. 104A): __________.
    8. Full legal name of the copyright owner (or the owner of 
exclusive rights): __________.
    9. The person or entity identified in space #8 owns:
{time}  all rights.
{time}  the following rights (e.g., the right to reproduce/
distribute/publicly display/publicly perform the work or to prepare 
a derivative work): __________.
    10. Person or entity that the Copyright Office should contact 
concerning the Notice:
{time}  Name:----------------------------------------------------------
{time}  Address:-------------------------------------------------------
{time}  Telephone:-----------------------------------------------------
{time}  Fax number (if any):-------------------------------------------
{time}  E-mail address (if any):---------------------------------------
    11. Person or entity that libraries and archives may contact 
concerning the work's normal commercial exploitation or availability 
at a reasonable price:
{time}  Name:----------------------------------------------------------
{time}  Address:-------------------------------------------------------
{time}  Telephone:-----------------------------------------------------
{time}  Fax number (if any):-------------------------------------------
{time}  E-mail address (if any):---------------------------------------

Additional Content (OPTIONAL):

    12. Original copyright registration number: ____________________
    13. Additional information concerning the work's normal 
commercial exploitation or availability at a reasonable price: 
____________________

Declaration:

    I declare under penalty of perjury under the laws of the United 
States:
{time}  that each work identified in this notice is subject to 
normal commercial exploitation.
{time}  that a copy or phonorecord of each work identified in this 
notice is available at a reasonable price.
Signature:-------------------------------------------------------------
Date:------------------------------------------------------------------
{time}  Typed or printed name:-----------------------------------------
{time}  Title:---------------------------------------------------------

Appendix B to Sec. 201.39--Required format for Continuation Sheet

NLA CON
Page ____of ____Pages.

Continuation Sheet for NLA Notice to Libraries and Archives of Normal 
Commercial Exploitation or Availability at Reasonable Price

    1. Title of the work (or, if untitled, a brief description of 
the work): ____________________.
    2. Type of work (e.g. music, motion picture, book, photograph, 
illustration, map, article in a periodical, painting, sculpture, 
sound recording, etc.): ____________________.
    3. Edition, if any (e.g., first edition, second edition, 
teacher's edition) or version, if any (e.g., orchestral arrangement, 
English translation of French text). If there is no information 
available relating to the edition or version of the work, the Notice 
should state, ``No information available'': ____________________.
    4. Copyright renewal registration number (not required for 
foreign works restored under 17 U.S.C. 104A): ____________________.

Additional Content (OPTIONAL):

    5. Original copyright registration number: ____________________.
    6. Additional information concerning the work's normal 
commercial exploitation or availability at a reasonable price: 
____________________.

    Dated: December 21, 1998.
Marybeth Peters,
Register of Copyrights.

    Approved:
James H. Billington,
The Librarian of Congress.
[FR Doc. 98-34430 Filed 12-29-98; 8:45 am]
BILLING CODE 1410-30-P