[Federal Register Volume 66, Number 72 (Friday, April 13, 2001)]
[Rules and Regulations]
[Pages 19094-19095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-9236]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 205

[Docket No. RM 2001-1]


Service of Notice of Institution of Action for Infringement and 
Service of Complaint in Infringement Action on the Register of 
Copyrights

AGENCY: Copyright Office, Library of Congress.

ACTION: Final rule.

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SUMMARY: This document publishes the procedures for proper service on 
the Register of Copyrights when a registration applicant whose 
application for registration has been refused institutes an 
infringement action. Service under such circumstances is required under 
title 17, United States Code, section 411(a).

EFFECTIVE DATE: Effective May 14, 2001.

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

SUPPLEMENTARY INFORMATION: Under title 17, United States Code, the 
copyright law allows a copyright owner to sue for infringement of 
exclusive rights provided under 17 U.S.C. 106, as long as the work(s) 
at issue have been registered with the Copyright Office. In addition, 
under section 411(a), a registration applicant whose application for 
registration has been refused by the Office may institute an 
infringement action under certain circumstances. It states:

    Except for an action brought for a violation of the rights of 
the author under section 106A(a), and subject to the provisions of 
subsection (b), no action for infringement of the copyright in any 
United States work shall be instituted until registration of the 
copyright claim has been made in accordance with this title. In any 
case, however, where the deposit, application, and fee required for 
registration have been delivered to the Copyright Office in proper 
form and registration has been refused, the applicant is entitled to 
institute an action for infringement if notice thereof, with a copy 
of the complaint, is served on the Register of Copyrights. The 
Register may, at his or her option, become a party to the action 
with respect to the issue of registrability of the copyright claim 
by entering an appearance within sixty days after such service, but 
the Register's failure to become a party shall not deprive the court 
of jurisdiction to determine that case.

17 U.S.C. 411(a).
    The purpose of the statutory provision is to enable the Register to 
become a party to an action, if he or she chooses, with respect to the 
issue of registrability of the copyright claim, and, thereby explain 
the Office's rejection of an application or clarify the Office's 
registration practices and procedures. The Register has sixty days 
after service of complaint to intervene in the case. In order for this 
to occur, service must be proper and timely.
    Unfortunately, the statute does not give specific instructions 
about service on the Register when registration has been refused, and 
in practice such service has not been uniform. Despite the Copyright 
Office's publication of an address where these complaints should be 
directed, See 59 FR 17401 (April 12, 1994), they continue to be 
misdirected. A number of them have been delivered to the wrong section 
of the Copyright Office and held for over 60 days before being 
forwarded to the appropriate Copyright Office official. Such delays 
make it impossible for the Office to enter the case. Therefore, the 
Office is publishing in its regulations the procedures whereby notice 
of institution of lawsuits and complaints in cases where registration 
has been refused must be served directly upon the appropriate officials 
responsible for determining Office participation in such cases. Service 
that does not comply with these procedures will not be considered 
proper.
    Service on the Register of notice that an action has been 
instituted for infringement of a work for which registration has been 
refused will be satisfied by either sending by first class mail notice 
of the institution of the action in the form of a cover letter 
addressed to the Register of Copyrights, along with a copy of the 
complaint to the General Counsel of the Copyright Office at Copyright 
GC/I&R, P.O. Box 70400, Southwest Station, Washington, D.C. 20024 or by 
hand delivery of the same material to the General Counsel. If delivered 
by hand, the cover letter and complaint must be delivered to the 
Copyright Office General Counsel's Office at the James Madison Memorial 
Building, Room LM-403, First and Independence Avenue, SE, Washington, 
D.C. A copy of the cover letter and complaint should also be sent to 
the Department of Justice by first class mail, addressed to the 
Director of Intellectual Property Staff, Commercial Litigation Branch, 
Civil Division, Department of Justice, Washington, D.C. 20530.
    This final rule is being published without opportunity for notice 
and comment because it is a rule of agency practice and procedure. 
Moreover, the Office finds that there is good cause to conclude that 
providing the opportunity for notice and comment would be 
impracticable, unnecessary and contrary to the public interest because 
this rule simply advises parties of the address to which the notice 
required by section 411(a) must be sent. See 5 U.S.C. 553(b)(A) and 
(B).

List of Subjects in 37 CFR Part 205

    Copyright, Service of process.

Final Regulation

    In consideration of the foregoing, the Copyright Office is amending 
37 CFR Chapter II by adding part 205 consisting of subpart A to read as 
follows:

PART 205--PRODUCTION OF LEGAL DOCUMENTS AND OFFICIAL TESTIMONY

    Authority: 17 U.S.C. 411, 17 U.S.C. 702.


Sec. 205.1  Complaints served on the Register of Copyright pursuant to 
17 U.S.C. 411(a)

    When an action has been instituted pursuant to 17 U.S.C. 411(a) for 
infringement of the copyright of a work for which registration has been 
refused, notice of the institution of the action and a copy of the 
complaint must be served on the Register of Copyrights by delivering 
such documents by first class mail to the General Counsel of the 
Copyright Office, GC/I&R, P.O. Box 70400, Southwest Station, 
Washington, D.C. 20024, or delivery by hand to the General Counsel of 
the Copyright Office, James Madison Memorial Building, Room LM-403, 
First and Independence Avenue, SE, Washington, D.C. A second copy 
should be delivered by first class mail to the United States Department 
of Justice, directed to the Director of Intellectual Property Staff, 
Commercial

[[Page 19095]]

Litigation Branch, Civil Division, Department of Justice, Washington, 
D.C. 20530.

    Dated: April 3, 2001.
Marybeth Peters,
Register of Copyrights.

James H. Billington,
Librarian of Congress.
[FR Doc. 01-9236 Filed 4-12-01; 8:45 am]
BILLING CODE 1410-30-P