[Federal Register Volume 64, Number 129 (Wednesday, July 7, 1999)]
[Rules and Regulations]
[Pages 36576-36580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16828]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 212

[Docket No. RM99-4]


Design Protection for Vessel Hulls

AGENCY: Copyright Office, Library of Congress.

ACTION: Interim regulations; Request for comments.

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SUMMARY: The Copyright Office is adopting interim regulations to 
implement the registration process for original designs of vessel hulls 
protected under chapter 13 of the Copyright Act. The Office is 
requesting interested parties to comment on the regulations. The 
immediacy of the adoption is required to enable the Copyright Office to 
begin the registration process for vessel hull designs and implement 
the law, which became effective on October 28 of last year.

DATES: Effective date is July 1, 1999. Comments should be submitted no 
later than August 6, 1999. Reply comments are due no later than 
September 7, 1999.

ADDRESSES: An original and 10 copies of comments and reply comments 
should be mailed to: Office of the General Counsel, Copyright Office, 
PO Box 70400, Southwest Station, Washington, DC 20024. If delivered by 
hand, copies should be brought to: Office of the Copyright General 
Counsel, Room LM-403, James Madison Memorial Building, 101 Independence 
Avenue, SE, Washington, DC 20559-6000.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
William J. Roberts, Senior Attorney, Office of the General Counsel, 
Copyright Office, PO Box 70400, Southwest Station, Washington, DC 
20024. Telephone: (202) 707-8380. Telefax: (202) 707-8366.

SUPPLEMENTARY INFORMATION:

Background

    As part of the amendments made to the Copyright Act by the Digital 
Millennium Copyright Act (DMCA), Pub. L. 105-304, Congress enacted 
design protection for vessel hulls. Chapter 13 of the Copyright Act 
creates certain exclusive rights for owners of original designs of 
vessel hulls provided that registration of the design is made within 
two years after the date on which the design is first made public. 
Registration is to be made at the Copyright Office, in accordance with 
regulations established by the Register of Copyrights.
    The Register is issuing the interim regulations contained in this 
notice to implement the registration process for vessel hull designs. 
Ordinarily, the administrative process would commence with publication 
of proposed regulations, followed by a period of public comment, and 
later publication of final regulations. The Register has determined, 
however, that interim regulations need to be adopted at this time in 
order to begin the registration process for vessel hull designs. The 
need for expedited regulations is evident from two circumstances. 
First, section 504 of the DMCA requires the Register, in conjunction 
with the Patent and Trademark Office, to submit a report to Congress 
evaluating the effects of design protection for vessel hulls within one 
year of passage of the DMCA. In order to submit a meaningful report to 
Congress, it is necessary to begin the registration process 
immediately; otherwise, there will be little to discuss regarding the 
effects of chapter 13.
    Second, the Office has received a growing number of public 
inquiries regarding registration, particularly as the boating industry 
prepares its new designs for summer display to dealers and 
distributors. The Office also acknowledges that the right to commence 
an infringement action brought by an owner of a vessel hull design is 
contingent upon first obtaining a certificate of registration. 17 
U.S.C. 1321(a). The Register, therefore, concludes that it is 
appropriate to adopt interim regulations at this time, and request 
public comment on these regulations. After the Copyright Office reviews 
the comments, final regulations will be issued.

Interim Regulations

    The interim regulations are codified at part 212 of 37 CFR. The 
highlights of these regulations are discussed briefly below.

1. Fees

    The basic application fee is $75. The Copyright Office considers 
this to be an introductory fee until such time as we can determine the 
cost to the Office of

[[Page 36577]]

the registration process. This principle applies to the other fees 
described in Sec. 212.2 as well. The Office will adjust the fees, if 
necessary, in accordance with the provisions of 17 U.S.C. 1316.
    An important aspect of the basic fee is that it applies to 
registration of one vessel hull design only. Multiple designs, whether 
submitted on a single or multiple application forms, require payment of 
the $75 fee for each design registered.

2. Registration of Claims for Protection of Eligible Designs

    Section 212.3 prescribes the essential requirements for 
registration of a vessel hull design.
    The application form that must be used by all applicants seeking to 
register a vessel hull design is the Form D-VH, available from the 
Copyright Office. Copies of the form may also be printed or downloaded 
from the Copyright Office website (http://www.loc.gov/copyright/forms/
formdvh.pdf). The required elements of a registration application are a 
completed form D-VH, deposit material identifying the design or designs 
for which registration is sought, and the appropriate fee prescribed in 
Sec. 212.2. Applications may only be made by the owner or owners of a 
design, or their authorized representatives or agents.
    Section 212.3(e) contains the requirements for submission of 
deposit material identifying the design or designs that are submitted 
for registration. The Copyright Office will accept either drawings or 
photographs identifying a design. It is important that the exact 
requirements of paragraph (e) with respect to character, quality, and 
submission of the photographs or drawings be satisfied. First, the 
photographs or drawings must adequately depict the design to establish 
the basis of the claim and to enable the Office to examine the claim. A 
court would be justified in denying a claim for infringement of an 
aspect of a design that was not adequately revealed in the deposit 
material accompanying the application. Second, the requirements of 
paragraph (e) must be met to enable the Copyright Office to reproduce 
the depictions of the design on the certificate of registration, as 
required by the statute. A registration cannot be made if the 
depictions of the design cannot be reproduced on the certificate.
    Section 121.3(f) provides the requirements for submitting claims 
for multiple designs. Section 1310(j) of title 17 provides that 
``[m]ore than one design may be included in the same application under 
such conditions as may be prescribed by the [Register].'' 17 U.S.C. 
1310(j). In order to prevent confusion in examining a single 
application for multiple designs, the Office is limiting the 
circumstances under which a single application for multiple designs may 
be submitted. Paragraph (f) provides that a single application may be 
submitted for more than one design provided that each of the designs is 
embodied in the same make and model of the vessel and all other 
information apart from the type or style and description of the design 
is the same. If the information (apart from the type or style of the 
design and the description of the design) in any of the spaces on Form 
D-VH is different for one or more designs, then multiple application 
forms must be used. Thus, for example, if a particular make and model 
of a vessel manufactured by a company contains multiple designs created 
by the same designer, then a single application may be used (provided, 
of course, that the information in the remaining spaces of Form D-VH is 
the same). If, however, the designers for each design are different, 
then separate application forms must be used for each design.
    The $75 application fee applies to each design submitted for 
registration, regardless of whether the designs appear on a single or 
multiple applications.
    As permitted by 17 U.S.C. 1312(b), the Register is adopting a 
written declaration for Form D-VH in lieu of the oath required by 17 
U.S.C. 1312(a). The written declaration eliminates the need for 
applicants to have the completed application form notarized. All 
applicants are advised to read the written declaration carefully before 
signing as there are criminal penalties for false statements. 17 U.S.C. 
1327; 18 U.S.C. 1001.
    Section 212.3(h) addresses priority claims--i.e., where an 
applicant has sought protection for the same design in another country 
prior to seeking registration in the United States. The paragraph 
requires the applicant to identify the country, filing date and serial 
number of the foreign application, and to provide a certified copy of 
the application and a translation of the application. In addition, if 
requested by the Copyright Office, the applicant must submit proof that 
the foreign country in which the prior application was filed extends 
protection to U.S. citizens that is similar to the protection contained 
in chapter 13 of title 17. If the protection is not similar, then no 
credit can be given to the prior application under 17 U.S.C. 1311.
    Section 212.3(i) provides that the effective date of a registration 
is the date of its publication by the Copyright Office, and paragraph 
(j) provides that publications will be made on the Copyright Office's 
website.

3. Affixation and Placement of Design Notice

    Section 212.4 prescribes the elements, affixation and placement of 
the design notice required by 17 U.S.C. 1306. The elements of a proper 
design notice are those prescribed in the statute and repeated in 
paragraph (b) of this section regulation, and the affixation and 
location of the design notice is anywhere on the vessel that would give 
``reasonable notice'' that the design is protected as the vessel passes 
through the normal channels of commerce.
    Section 212.4(d) describes locations on a vessel where placement of 
a design notice would indeed give reasonable notice. These locations 
are by no means the only acceptable locations, but are offered as 
guidance and a ``safe harbor'' for what would constitute reasonable 
notice of design protection.

4. Recordation of Distinctive Identification

    Section 1306 of title 17 provides that a distinctive identification 
of an owner of a design may be used in a design notice provided that 
the distinctive identification is first recorded with the Copyright 
Office. Section 212.5 of the interim regulations provides the 
requirements for recording a distinctive identification with the 
Copyright Office. A suggested format for the recordation is posted on 
the Copyright Office website.

5. Recordation of Transfers and Other Documents

    Section 1320 of title 17 of the United States Code provides that 
assignments, grants, conveyances and mortgages of rights in registered 
designs may be recorded in the Copyright Office. Section 212.6 provides 
that such documents shall be recorded in the same manner as documents 
pertaining to copyrights, as set forth in section 201.4.

6. Effective Date of Regulations

    The effective date of the interim regulations is July 1, 1999. The 
immediacy of the effective date is required to enable the Copyright 
Office to begin the registration process for vessel hull designs and 
implement the law, which became effective on October 28 of last year. 
The Office will adopt final regulations following receipt of public 
comment on these interim regulations and based on its experience with 
registrations made under the interim regulations.

[[Page 36578]]

Cancellation of Registrations

    Section 1313(c) of title 17 provides that ``[a]ny person who 
believes he or she is or will be damaged by a registration under this 
chapter may, upon payment of the prescribed fee, apply to the 
[Register] at any time to cancel the registration on the ground that 
the design is not subject to protection under this chapter.'' 17 U.S.C. 
1313(c). Upon receipt of such application, the Register must provide 
the owner of the design with the request for cancellation and ``the 
owner shall have a period of 3 months after the date on which such 
notice is mailed to present arguments to the (Register) to support the 
validity of the registration.'' Id. The Register is granted authority 
to establish regulations by which the opposing parties may ``appear and 
be heard in support of their arguments,'' and is directed to cancel the 
registration if she determines that ``the design is not subject to 
protection under this chapter.'' Id.
    Because the Copyright Office is just beginning the registration 
process with publication of these interim regulations, there is no need 
to adopt cancellation regulations at this time.
    The Copyright Office welcomes information or comment as to the 
registration and cancellation process.

List of Subjects in 37 CFR Part 212

    Design, Fees, Registration, Vessel hulls.

Interim Regulations

    In consideration of the foregoing, the Register of Copyrights adds 
part 212 on an interim basis as follows:

PART 212--PROTECTION OF VESSEL HULL DESIGNS

Sec.
212.1  Scope.
212.2  Fees.
212.3  Registration of claims of protection of eligible designs.
212.4  Affixation and placement of design notice.
212.5  Recordation of distinctive identification of vessel hull 
designer.
212.6  Recordation of transfers and other documents.

    Authority: 17 U.S.C. chapter 13.


Sec. 212.1  Scope.

    The provisions of this part apply to the protection and 
registration of original designs of vessel hulls under chapter 13 of 
title 17, United States Code. Design protection and registration under 
this part are separate from copyright protection and registration. 
Copyright registration is governed by the provisions of part 202 of 
this subchapter.


Sec. 212.2  Fees.

    The following fees or charges are established by the Register of 
Copyrights for services related to designs:
    (a) For filing an application for registration of one design: $75;
    (b) For filing an application for registration of more than one 
design: $75, plus $75 for each design beyond the first;
    (c) For each page of deposit material identifying the design beyond 
the third page: $20;
    (d)(1) For special handling of an application for registration of a 
design: $500;
    (2) For special handling of each additional design in an 
application for registration of multiple designs: $50;
    (e) For corrections or omissions in the certificate of 
registration: $65;
    (f) For recordation of a distinctive identification of an owner: 
$50;
    (g) For providing an additional certificate of registration: $25;
    (h) For providing any other certification of Copyright Office 
records: $65 per hour;
    (i) For preparing a search report: $65 per hour;
    (j) For expediting a request for certification or search of Office 
records, the appropriate fees set out in Sec. 201.3(d).


Sec. 212.3  Registration of claims for protection of eligible designs.

    (a) Limitations. Protection is not available for, and an 
application for registration will not be accepted for:
    (1) An otherwise eligible design made public prior to October 28, 
1998;
    (2) An otherwise eligible design made public on a date more than 
two years prior to the filing of an application for registration under 
this section;
    (3) A design ineligible for any of the reasons set forth in 17 
U.S.C. 1302.
    (b) Required elements of application. An application is considered 
filed with the Copyright Office on the date on which the following 
three items have been received by the Copyright Office:
    (1) Completed Form D-VH;
    (2) Deposit material identifying the design or designs for which 
registration is sought; and
    (3) The appropriate fee.
    (c) Application by owner of design. An application for registration 
under this section may be made only by the owner or owners of the 
design, or by the duly authorized agent or representative of the owner 
or owners of the design.
    (d) Application form. Registration must be made on Form D-VH. Forms 
are available from the Copyright Office and may be reprinted from the 
Copyright Office's website (http://www.loc.gov/copyright/forms/
formdvh.pdf).
    (e) Deposit material.--(1) In General. Identification of the design 
to be registered may be made in the form of drawings or photographs. No 
more than two drawings or photographs of the design may appear on a 
single sheet. Applicants may submit up to three 8\1/2\''  x  11'' 
sheets containing drawings or photographs as part of the basic $75 
application fee. The fee for each additional sheet beyond three is $20 
per sheet. No combinations of drawings and photographs may be submitted 
on a single sheet. The drawings or photographs that accompany the 
application must reveal those aspects of the design for which 
protection is claimed. The registration extends only to those aspects 
of the design which are adequately shown in the drawings or 
photographs.
    (2) Views. The drawings or photographs submitted should contain a 
sufficient number of views to make an adequate disclosure of the 
appearance of the design, i.e. front, rear, right and left sides, top 
and bottom. While not required, it is suggested that perspective views 
be submitted to show clearly the appearance and shape of the three 
dimensional designs.
    (3) Drawings. (i) Drawings must be in black ink on white 8\1/2\'' 
x  11'' unruled paper. A drawing of a design should include appropriate 
surface shading which shows clearly the character and contour of all 
surfaces of any 3-dimensional aspects of the design. Surface shading is 
also necessary to distinguish between any open and solid areas of the 
design. Solid black surface shading is not permitted except when used 
to represent the black color as well as color contrast.
    (ii) The use of broken lines in drawings depicting the design is 
understood to be for illustrative purposes only and forms no part of 
the claimed design. Structure that is not part of the design, but that 
is considered necessary to show the environment in which the design is 
used, may be represented in the drawing by broken lines. This includes 
any portion of the vessel hull in which the design is embodied or 
applied that is not considered part of the design. When the claimed 
design is only surface ornamentation to the vessel hull, the vessel 
hull in which it is embodied must be shown in broken lines.
    (iii) When broken lines are used, they should not intrude upon or 
cross the depiction of the design and should not

[[Page 36579]]

be of heavier weight than the lines used in depicting the design. Where 
a broken line showing of environmental structure must necessarily cross 
or intrude upon the representation of the design and obscure a clear 
understanding of the design, such an illustration should be included as 
a separate figure, in addition to other figures which fully disclose 
the subject matter of the design.
    (4) Photographs. High quality black and white or color photographs 
will be accepted provided that they are mounted on plain white 8\1/2\'' 
 x  11'' unlined paper and do not exceed two photographs per sheet. 
Photographs must be developed on double weight photographic paper and 
must be of sufficient quality so that all the details of the design are 
plainly visible and are capable of reproduction on the registration 
certificate, if issued.
    (f) Multiple claims.--(1) In general. Claims for more than one 
design may be filed in one of two ways. If multiple designs are 
contained on a single make and model of a vessel hull (and therefore, 
the information in Space 1 of Form D-VH--the make and model of the 
vessel that embodies the design--is the same for each of the designs), 
a single application form may be used for all designs, provided that 
the information in spaces 3 through 9 is the same for each of the 
designs. If multiple designs are contained on more than one make and 
model of a vessel, or the information in spaces 3 through 9 is not the 
same for each of the multiple designs, then separate applications must 
be used for each design.
    (2) Single application. Where a single application for multiple 
designs is appropriate, a separate Form 
D-VH/CON must be used for each design beyond the first appearing on 
Form D-VH. Each Form D-VH/CON must be accompanied by deposit material 
identifying the design that is the subject of the Form D-VH/CON, and 
the deposit material must be attached to the Form D-VH/CON. The Form D-
VH and all the Form D-VH/CONs for the single application must be 
submitted together.
    (3) Multiple applications. Where multiple applications for more 
than one design are required, a Form D-VH must be completed for each 
design. Deposit material identifying the design must accompany each 
application. Multiple applications may be filed separately.
    (4) Fees. The $75 basic application fee applies to each design 
submitted, regardless of whether a single application or multiple 
applications are used.
    (g) Written declaration. In lieu of the oath required by 17 U.S.C. 
1312(a), the application shall contain a written declaration, as 
permitted by 17 U.S.C. 1312(b), signed by the applicant, or the 
applicant's duly authorized agent or representative. If the design has 
been made public with the design notice prescribed in 17 U.S.C. 1306, 
the written declaration shall also describe the exact form and position 
of the design notice. The written declaration shall read as follows:

    The undersigned, as the applicant or the applicant's duly 
appointed agent or representative, being hereby warned that willful 
false statements are punishable by fine or imprisonment, or both, 
under 18 U.S.C. 1001, and that such willful false statements may 
jeopardize the validity of this application or any resulting 
registration, hereby declares to the best of his/her knowledge and 
belief:
    (1) That the design has been fixed in a useful article;
    (2) That the design is original and was created by the 
designer(s), or employer if applicable, named in the application;
    (3) That those aspects of the design for which registration is 
sought are not protected by a design patent;
    (4) That the design has not previously been registered on behalf 
of the applicant or the applicant's predecessor in title; and
    (5) That the applicant is the person entitled to protection and 
to registration under chapter 13 of title 17, United States Code.

    (h) Priority claims. An applicant seeking the benefit of 17 U.S.C. 
1311 because the applicant has, within the previous 6 months, filed an 
application for protection of the same design in a foreign country, 
must provide:
    (1) Identification of the filing date of the foreign application;
    (2) Identification of the foreign country in which the application 
was filed;
    (3) The serial number or any other identifying number of the 
foreign application;
    (4) A certified copy of the foreign application;
    (5) A translation of the foreign application and a statement, 
signed by the translator, that the translation is accurate, if the 
foreign application is in a language other than English; and
    (6) If requested by the Copyright Office, proof that the foreign 
country in which the prior application was filed extends to designs of 
owners who are citizens of the United States, or to applications filed 
under chapter 13 of title 17, United States Code, similar protection to 
that provided under chapter 13 of title 17, United States Code.
    (i) Effective date of registration. The effective date of 
registration is the date of publication of the registration by the 
Copyright Office.
    (j) Publication of registration. Publication of registrations of 
vessel hull designs shall be made on the Copyright Office website 
(http://www.loc.gov/copyright/vessels).


Sec. 212.4  Affixation and placement of design notice.

    (a) General. (1) This section specifies the methods of affixation 
and placement of the design notice required by 17 U.S.C. 1306. Sections 
1306 and 1307 govern the circumstances under which a design notice must 
be used and the effect of omission of a design notice. A notice deemed 
acceptable under this part shall be considered to satisfy the 
requirements of section 1306 that it be so located and applied as to 
give reasonable notice of design protection while the useful article 
embodying the design is passing through its normal channels of 
commerce. As provided in that section, the examples specified in this 
part shall not be considered exhaustive of the methods of affixation 
and locations giving reasonable notice of the claim of protection in 
the design.
    (2) The acceptability of a design notice under these regulations 
shall depend upon its being legible under normal conditions of use, and 
affixed in such a manner and position that, when affixed, it may be 
viewed upon reasonable examination. There is no requirement that a 
design notice be permanently embossed or engraved into a vessel hull or 
deck, but it should be affixed in such a manner that, under normal 
conditions of use, it is not likely to become unattached or illegible.
    (b) Elements of a design notice. If the design has been registered, 
the registration number may be included in the design notice in place 
of the year of the date on which protection for the design commenced 
and the name of the owner, an abbreviation by which the name can be 
recognized, or a generally accepted alternative designation of the 
owner. The elements of a design notice shall consist of:
    (1) The words ``Protected Design'', the abbreviation ``Prot'd 
Des.'', or the letter ``D'' within a circle, or the symbol *D*;
    (2) The year of the date on which protection for the design 
commenced; and
    (3) The name of the owner, an abbreviation by which the name can be 
recognized, or a generally accepted alternative designation of the 
owner.
    (c) Distinctive identification. Any distinctive identification of 
an owner may be used for purposes of paragraph (b)(3) of this section 
if it has been recorded by the Register of Copyrights pursuant to 
Sec. 212.5 before the design

[[Page 36580]]

marked with such identification is registered.
    (d) Acceptable locations of notice. The following are acceptable 
means of affixing and placement of a design notice:
    (1) In close proximity to the hull identification number required 
by 33 CFR 181.23;
    (2) In close proximity to the driver's console such that it is in 
plain view from the console;
    (3) If the vessel is twenty feet in length or less and is governed 
by 33 CFR 183.21, in close proximity to the capacity marking; and
    (4) In close proximity to the make and/or model designation of the 
vessel.


Sec. 212.5  Recordation of distinctive identification of vessel hull 
designer

    (a) General. Any owner of a vessel hull may record a distinctive 
identification with the Register of Copyrights for purposes of using 
such distinctive identification in a design protection notice required 
by 17 U.S.C. 1306. A distinctive identification of an owner may not be 
used in a design notice before it has first been recorded with the 
Register.
    (b) Forms. The Copyright Office does not provide forms for the use 
of persons recording distinctive identifications of ownership of a 
vessel hull. However, persons recording distinctive identifications are 
encouraged to use the suggested format available on the Copyright 
Office website (http://www.loc.gov/copyright/vessels).
    (c) Recording distinctive identifications. Any distinctive 
identification of an owner of a vessel hull may be recorded with the 
Register of Copyrights provided that a document containing the 
following is submitted:
    (1) The name and address of the owner;
    (2) A statement of the owner that he/she is entitled to use the 
distinctive identification;
    (3) A statement or depiction of the identification; and
    (4) A recordation fee of $50.
    (d) The document should be mailed to: Dept. D-VH, Vessel Hull 
Registration, P.O. Box 71380, Washington, DC 20024-1380.


Sec. 212.6  Recordation of transfers and other documents

    The conditions prescribed in Sec. 201.4 of this chapter for 
recordation of transfers of copyright ownership and other documents 
pertaining to copyright are applicable to the recordation of documents 
pertaining to design protection of vessel hulls under 17 U.S.C. chapter 
13.

    Dated: June 24, 1999.
Marybeth Peters,
Register of Copyrights.

James H. Billington,
Librarian of Congress.
[FR Doc. 99-16828 Filed 7-6-99; 8:45 am]
BILLING CODE 1410-30-P