[Federal Register Volume 65, Number 129 (Wednesday, July 5, 2000)]
[Notices]
[Pages 41508-41509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16888]



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LIBRARY OF CONGRESS

Copyright Office

[Docket No. 2000-6]


Registration of Claims to Copyright

AGENCY: Copyright Office, Library of Congress.

ACTION: Statement of policy.

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SUMMARY: The Copyright Office of the Library of Congress issues this 
statement of policy to clarify the practices relating to examination of 
copyright claims in music, and the relevance of the ``nature-of-work'' 
designation at space 1 of the PA Form.

EFFECTIVE DATE: July 5, 2000.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
Charlotte Douglas, Principal Legal Advisor, Copyright Office, Library 
of Congress, Washington, DC 20540. Telephone: (202) 707-8380. Telefax: 
(202) 707-8366.

SUPPLEMENTARY INFORMATION: The Copyright Office is issuing this 
statement of policy to clarify its examination practices with respect 
to the ``nature-of-work'' space on Form PA, for registration of works 
of the performing arts. This policy statement is in response to a 
recent judicial decision by the United States Court of Appeals for the 
Third Circuit in Raquel v. Education Management Corp., 196 F.3d 171 
(3rd Cir. 1999) [hereinafter referred to as Raquel], in which the court 
appears to have misunderstood the Copyright Office's longstanding 
published practices relating to the ``nature-of-work''space.
    In Raquel, the court held that a certificate of registration of a 
copyright was invalid because the claimants, authors of the copyright 
in a musical composition, had described the ``nature of this work'' in 
space 1 of their Form PA application as ``Audiovisual work.'' The 
deposit submitted with the application was a videotape of a television 
commercial in which the claimants' musical composition was performed. 
The court concluded, and the claimants do not appear to have contested, 
that the claimants did not own any copyright interest in the television 
commercial itself. In space 2, the application had correctly designated 
the nature of authorship as ``All music and lyrics and arrangement.''
    A key element of the court's reasoning in invalidating the 
registration was the court's conclusion that ``[h]ad the Register of 
Copyrights known that Raquel did not author the audiovisual work 
identified in its registration, it is likely that this rather 
fundamental misstatement would have occasioned the rejection of 
Raquel's application.'' 196 F.3d at 177. Based upon this prediction of 
what the Copyright Office would have done if it had known the claimants 
had not authored the television commercial, the court concluded that 
the claimants had made a material misrepresentation in the application 
for registration. The court also concluded that this misrepresentation 
could not have been inadvertent. As a result, the court applied the 
principle that a plaintiff's knowing failure to advise the Copyright 
Office, in an application for copyright registration, of material facts 
which might have led to the rejection of a registration application 
constitutes grounds for holding the registration invalid and incapable 
of supporting an infringement action. 196 F.3d at 176 (citing 
Masquerade Novelty, Inc. v. Unique Indus., Inc., 912 F.2d 663, 667 (3d 
Cir. 1990).
    The Raquel case raises questions concerning the ``nature of this 
work'' space on the Form PA application for copyright registration. If 
applied strictly, the decision could jeopardize the validity of 
copyright registrations of musical works in a number of instances. 
Because of the possibility that other courts will rely on Raquel as 
valid precedent for invalidating copyright registrations under similar 
circumstances, the Copyright Office is issuing this policy statement to 
clarify that it was not misled in registering the copyright claim in 
the Raquel case, and that the Copyright Office knew that the copyright 
claim was in a musical work, and not an audiovisual work. The Office is 
also issuing this statement to clarify that in the ``nature of this 
work'' space on Form PA, it has been and continues to be acceptable to 
describe the physical nature of the deposit submitted with the 
application.
    While section 409 of the copyright law largely dictates the content 
of the application form, this statutory section does not require a 
nature-of-work space. This space was added to the PA and VA forms 
because these forms cover a number of different categories of works, 
and it was believed the additional information would clarify the 
general character or the type or category of the work being registered. 
In practice, however, the information provided in this space by 
applicants often does not relate to the nature of the claim; and the 
Office's practice has always been to look to the ``nature of 
authorship'' statement in space 2 as the primary source of such 
information. See Compendium of Copyright Office Practices, Compendium 
II (``Compendium II''), Sec. 619 (1988) (``In general, the nature of 
authorship defines the scope of the registration; therefore, it 
represents an important copyright fact''). If, on the basis of the 
deposit and the nature of authorship statement, the nature of the 
copyright claim is clear, the Copyright Office will proceed with 
registration.
    Ideally, the nature-of-work space should describe the work being 
registered. In practice, it has served a variety of functions, e.g., as 
a substitute for the statement of authorship (when such a statement was 
lacking) or as a supplementary description augmenting the statement of 
authorship. It has also served as a description of the physical nature 
of the deposit, and the Office has treated such a statement as 
acceptable where the nature of authorship statement and deposit make 
clear the scope of the copyright claim being registered. The Compendium 
establishes this policy in the following language: ``Forms PA and VA 
contain a nature-of-work space. This space should give a description of 
the general nature and character of the work being registered. A 
description of the physical form of the work is generally acceptable. 
Ordinarily, the Copyright Office will not consider the omission or 
incorrect completion of information in the nature-of-work space as a 
reason, in itself, for communicating with the applicant * * *'' 
Compendium II, Sec. 614.
    In Raquel, the nature of authorship line described the copyright 
claim as ``All music and lyrics and arrangement.'' The deposit 
consisted of a videotape which contained the musical composition being 
registered. In the nature of work space, the applicant stated 
``audiovisual work.'' Consistent with general Copyright Office 
practice, the Office regarded the copyright claim to be in a musical 
composition, and no communication with the applicant was made regarding 
the reference to ``audiovisual work'' in the nature-of-work space since 
it was regarded as a physical description of the work being 
registered.\*\
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    \*\ Strictly speaking, an ``audiovisual work'' is one of the 
categories of works enumerated in section 102 of the Copyright Act, 
17 U.S.C. 102. See also 17 U.S.C. 101 (definition of ``audiovisual 
works''). Thus, it is understandable how the court of appeals could 
have interpreted the entry of ``audiovisual work'' in the ``nature 
of this work'' space as a description of the scope of Raquel's 
claim. However, given the Office's practice of accepting 
descriptions of the physical form of the deposit, and given the 
Office's practice of looking to the ``nature of authorship'' 
statement for a description of the scope of the claim, the Office 
understood the term ``audiovisual work'' in this context to be a 
physical description of the deposit.
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    The Office will continue to accept applications in which the 
``nature of

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this work'' space describes the physical nature of the deposit rather 
than the scope of the copyright claim. However, the decision of the 
Third Circuit in Raquel demonstrates that there is some risk in 
engaging in this practice. It is hoped that this statement of policy, 
clarifying what the Office's practice has been and will continue to be, 
will offer guidance to the courts and to litigants about the Office's 
examination practices with respect to the nature-of-work space, and 
will prevent other courts addressing situations similar to that in 
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Raquel from reaching the same result as in Raquel.

    Dated: June 27, 2000.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 00-16888 Filed 7-3-00; 8:45 am]
BILLING CODE 1410-30-P