[Federal Register Volume 66, Number 233 (Tuesday, December 4, 2001)]
[Rules and Regulations]
[Pages 62942-62945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30013]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM2001-7]


Disruption or Suspension of Postal or Other Transportation or 
Communications Services

AGENCY: Copyright Office.

ACTION: Interim regulations; Request for comments.

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SUMMARY: The Copyright Office is adopting interim regulations to 
address the effect of a general disruption or suspension of postal or 
other transportation or communications services on the Office's receipt 
of deposits, applications, fees, or any other materials, and the 
assignment of a date of receipt to such materials. When the Register of 
Copyrights has published a determination that there has been a general 
disruption or suspension of such services, persons who have sent 
materials to the Office and believe the Office's receipt of those 
materials has been delayed may submit evidence that the materials would 
have been received in the Office by a particular date but for the 
disruption or suspension. The Office may assign, as the date of 
receipt, the date on which the materials would have been received but 
for the disruption or suspension.

DATES: The effective date of the interim regulations is December 4, 
2001. Comments should be submitted no later than January 3, 2002.

ADDRESSES: An original and 10 copies of comments and reply comments 
should be mailed to: Office of the General Counsel, Copyright GC/I&R, 
P.O. Box 70400, Southwest Station, Washington, D.C. 20024-0400. 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.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
Patricia Sinn, Senior Attorney, Office of the General Counsel, 
Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, D.C. 
20024-0400. Telephone: (202) 707-8380. Telefax: (202) 707-8366.

SUPPLEMENTARY INFORMATION: Section 709 of title 17, United States Code 
provides that:

    In any case in which the Register of Copyrights determines, on 
the basis of such evidence as the Register may by regulation 
require, that a deposit, application, fee, or any other material to 
be delivered to the Copyright Office by a particular date, would 
have been received in the Copyright Office in due time except for a 
general disruption or suspension of postal or other transportation 
or communications services, the actual receipt of such material in 
the Copyright Office within one month after the date on which the 
Register determines that the disruption or suspension of such 
services has terminated, shall be considered timely.

    In cases of disruptions or suspensions of postal, transportation or 
communications services, section 709 permits the Register to assign, as 
the date of receipt for deposits, applications, fees and other 
materials submitted to the Office, the date on which the materials 
would have been received but for the disruption or suspension, so long 
as the Office has actually received the material within one month after 
the disruption or suspension has ended.
    The Office has not promulgated any regulations relating to 
determination of the appropriate date of receipt of materials when a 
general disruption or suspension of postal or other transportation or 
communications services has taken place. Until now, the Office has 
perceived no need for such regulations. However, recent events have, 
unfortunately, demonstrated that such regulations are necessary. 
Concerns about anthrax in United States Postal Service facilities in 
the District of Columbia have caused severe disruptions of postal 
service to the Office since October 17.
    Today the Register of Copyrights is publishing a separate notice 
declaring that commencing on October 18, there has been a general 
disruption of postal services to the Library of Congress. The Library 
continues to experience disruptions in its postal service. The Register 
shall publish another notice when she determines that the disruption of 
services has ceased.
    The Office has already received one request to assign a date of 
receipt for a copyright registration application that was delayed due 
to the disruption of postal services, and it is anticipated that 
additional requests will be made. In order expeditiously to permit the 
application of section 709 to materials submitted during the current 
period of disruption of services, the Office is announcing interim 
regulations to govern such requests and the Office's determination of 
the date of receipt.
    Assigning a date of receipt based on the date materials would have 
been received but for the disruption is important in a number of 
contexts. The effective date of registration of a copyright is the date 
the application, fees and deposit are received by the Copyright Office. 
17 U.S.C. 410(d). That date can affect the copyright owner's rights and 
remedies, such as eligibility for statutory damages and attorney's 
fees. See 17 U.S.C. 412 (statutory damages and attorney's fees 
available only for works with effective date of registration prior to 
commencement of infringement or, for published works, within three 
months of first publication of the work). The date of recordation of a 
document can be crucial in determining priorities among conflicting 
transfers. See 17 U.S.C. 205, 37 CFR 201.9(c) (date of recordation is 
the date when all elements required for recordation, including the 
prescribed fee, have been received in the Copyright

[[Page 62943]]

Office). The date of recordation of a notice of termination of a grant 
of a transfer or license can be crucial in determining whether the 
termination is effective. See 17 U.S.C. 304(c)(4)(b) (notice of 
termination must be recorded in the Copyright Office before the 
effective date of termination), 37 CFR 201.10((f)(3) (date of 
recordation of notice of termination is the date when all of the 
elements required for recordation have been received in the Copyright 
Office).
    Under section 201.8(a) of the interim regulations, when the 
Register determines that there has been a general disruption or 
suspension of postal or other transportation or communications services 
that has delayed the receipt by the Copyright Office of deposits, 
applications, fees, or any other materials, the Register shall publish 
an announcement to that effect. When the state of disruption or 
suspension of such services has ceased, the Register shall publish an 
announcement to that effect.
    Section 201.8(b) provides that persons who have submitted material 
to the Office, the receipt of which has been delayed due to the 
suspension or disruption of services, may request that the Register 
assign, as the date of receipt of the material, the date on which the 
Register determines the material would have been received but for the 
disruption or suspension of services. Section 201.8(f) states where 
such requests should be sent.
    Section 201.8(c) sets forth when a request may be submitted. 
Requests pertaining to applications for copyright registration must be 
made no later than one year after the claimant has received a 
certificate of registration. Such requests ordinarily will not be 
permitted until after the claimant has received a certificate of 
registration. Exceptions are made for cases in which the Office is 
communicating with a claimant about the application for other reasons, 
or other cases in which the Register finds there is good cause to 
consider a request prior to issuance of the certificate. In general, 
permitting the submission of requests prior to issuance of the 
certificate would impose unacceptable burdens on the Office due to 
difficulties in locating the particular pending applications to which 
the requests pertain. But when the Office has already communicated with 
the claimant in connection with an application, and the claimant is 
responding to the communication from the Office, the claimant may 
submit the request because there should be no difficulty in locating 
the application which is the subject of the communication.
    Requests relating to transfers of copyright or other documents 
submitted for recordation must also be made no later than one year 
after the person seeking recordation has received a certificate of 
recordation, but there is no requirement to wait until after the 
certificate has issued. In fact, because it is easier for the Documents 
Recordation Section of the Cataloging Division to correct the date of 
recordation prior to recording the document, persons seeking adjustment 
of the date of receipt of a document submitted for recordation are 
encouraged to submit requests as soon as possible.
    Requests pertaining to any other material submitted to the 
Copyright Office must be made no later than one year after the date the 
material is received by the Office.
    Section 201.8(d) provides that when a certificate of registration 
or a certificate of recordation has already been issued, the original 
certificate must be returned to the Office along with the request. If 
the request is granted, the Office will issue a new certificate with 
the revised effective date of registration or date of recordation. If 
the request is not granted, the original certificate will be returned.
    Section 201.8(e) provides that as evidence that the material would 
have been received on that date, the person making the request must 
submit a receipt from the United States Postal Service or a delivery 
service such as, or comparable to, United Parcel Service, Federal 
Express, or Airborne Express, indicating how and when the material was 
received by the Postal Service or delivery service, and indicating 
sufficient information to determine when the Postal Service or delivery 
service would have delivered the material to the Copyright Office but 
for the disruption or suspension of services. The Office will also 
accept other documentary evidence that it considers equivalent to such 
receipts, and it will accept sworn statements from persons with 
personal knowledge of the facts relating to the attempt to deliver the 
material to the Office.
    Section 201.8(f) provides for certain presumptions as to when 
material deposited with the United States Postal Service or a delivery 
service would have been received but for the disruption or suspension 
of services.

Effective Date

    Because of the unanticipated nature of the recent disruption in 
services and the necessity of providing a mechanism that will 
immediately permit the Copyright Office to adjust the date of receipt 
of materials in appropriate circumstances due to that disruption, the 
Register finds that there is good cause for the interim regulations to 
take effect immediately.

Request for Comments

    The Office solicits comments from the public on these interim 
regulations. Comments are due 30 days from the date these regulations 
are published. The Office will consider these comments in preparing 
final regulations.
    The Office also solicits comments concerning a related issue. The 
Office was closed for business from October 18 through October 24, 
2001, because of concerns about possible anthrax contamination in the 
Library of Congress. During this period, the Office could not receive 
any applications, fees, deposits or other materials, whether by mail, 
courier or any other means of delivery. Because the Office's inability 
to receive materials during this time period was due to the closure of 
the Library of Congress, and not due to a general disruption or 
suspension of postal or other transportation or communications 
services, it does not appear that section 709 provides any authority 
for the Register to assign a date of receipt during that period for any 
materials that would have been received by the Office on a day during 
that period but for the closure of the Library. Thus, a person who 
attempted to deliver an application for copyright registration to the 
Office in person on October 22 would not be able to seek an effective 
date of registration of October 22, because the Office was not open on 
that date.
    Section 410(c) of 17 U.S.C. provides that ``[t]he effective date of 
a copyright registration is the day on which an application, deposit, 
and fee, which are later determined by the Register of Copyrights or by 
a court of competent jurisdiction to be acceptable for registration, 
have all been received in the Copyright Office.'' (Emphasis added). The 
only exception to the requirement that the effective date of 
registration be the date of actual receipt is set forth in section 709, 
which does not address the unanticipated closure of the Office.
    Moreover, a person who deposited an application addressed to the 
Office with an overnight delivery service on October 17, with an 
expected date of receipt in the Office of October 18, would not be able 
to seek an effective date of registration on October 18 because section 
709 only permits the Register to assign as a date of receipt the date 
on which the material ``would have been received in the Copyright 
Office in due time except for a general disruption or suspension of 
postal or other

[[Page 62944]]

transportation or communications services.'' (Emphasis added.) In this 
case, the reason the Office did not receive the application on October 
18 was not a general disruption or suspension of postal or other 
transportation or communications services; it was the closure of the 
building that houses the Office. Thus, the earliest date of receipt 
that the Office could assign to the application would be October 25, 
the next date on which the Office was open.
    The Office would like to be able to offer relief to persons who 
were unable to deliver materials to the Office due to unanticipated 
closure of the Office during normal business hours, but we are aware of 
no authority that permits us to grant such relief. We welcome any 
comments providing citations to and analysis of authority that would 
permit the Office to issue regulations governing such a situation 
notwithstanding the express language of 17 U.S.C. 410(c).

List of Subjects in 37 CFR Part 201

    Communications, Copyright, Postal service.

Interim Regulations

    In consideration of the foregoing, the Register of Copyrights 
amends part 201 of 37 CFR on an interim basis as follows:

PART 201--GENERAL PROVISIONS

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

    Authority: 17 U.S.C. 702.

    2. Section 201.8 is added to read as follows:


Sec. 201.8  Disruption of postal or other transportation or 
communication services.

    (a) For purposes of 17 U.S.C. 709, when the Register has determined 
that there is or has been a general disruption or suspension of postal 
or other transportation or communications services that has delayed the 
receipt by the Copyright Office of deposits, applications, fees, or any 
other materials, the Register shall publish an announcement of that 
determination, stating the date on which the disruption or suspension 
commenced. The announcement may, if appropriate, limit the means of 
delivery that are subject to relief pursuant to section 709. Following 
the cessation of the disruption or suspension of services, the Register 
shall publish an announcement stating the date on which the disruption 
or suspension has terminated.
    (b) At the request of any person who provides satisfactory evidence 
that he or she has attempted to deliver a deposit, application, fee or 
other material to the Copyright Office but that receipt by the 
Copyright Office was delayed due to a general disruption or suspension 
of postal or other transportation or communications services, the 
Register shall assign, as the date of receipt of the deposit, 
application, fee or other material, the date on which the Register 
determines the material would have been received but for the disruption 
or suspension of services, if the deposit, application, fee or other 
material was actually received in the Copyright Office within one month 
after the disruption or suspension of services has terminated.
    (c) Timing. The request shall be made:
    (1) With respect to an application for copyright registration, no 
earlier than the date on which the claimant receives the certificate of 
registration and no later than one year after the date on which the 
claimant receives the certificate of registration; provided, however, 
that a request may be made prior to receipt of a certificate of 
registration--
    (i) If the Copyright Office has communicated with the claimant 
relating to the application and the claimant makes the request as part 
of a response to the communication from the Office; or
    (ii) If the Register determines that good cause exists to entertain 
a request prior to the issuance of a certificate of registration;
    (2) With respect to a transfer of copyright ownership or other 
document submitted for recordation pursuant to 17 U.S.C. 205, no later 
than one year after the date on which the person submitting the 
transfer or document receives the certificate of recordation;
    (3) With respect to any other material, no later than one year 
after the date on which the material was actually received in the 
Copyright Office.
    (d) In cases in which a certificate or registration or a 
certificate of recordation has already been issued, the original 
certificate must be returned to the Copyright Office along with the 
request.
    (e) For purposes of paragraph (b) of this section, satisfactory 
evidence shall consist of:
    (1) A receipt from the United States Postal Service indicating the 
date on which the United States Postal Service received material for 
delivery to the Copyright Office by means of first class mail, Priority 
Mail or Express Mail;
    (2) A receipt from a delivery service such as, or comparable to, 
United Parcel Service, Federal Express, or Airborne Express, indicating 
the date on which the delivery service received material for delivery 
to the Copyright Office and
    (i) The date on which delivery was to be made to the Copyright 
Office, or
    (ii) The period of time (e.g., overnight, or 2 days) from receipt 
by the delivery service to the date on which delivery was to be made to 
the Copyright Office;
    (3) Other documentary evidence which the Register deems equivalent 
to the evidence set forth in paragraphs (e)(1) and (2) of this section; 
or
    (4) A sworn statement from a person with actual knowledge of the 
facts relating to the attempt to deliver the material to the Copyright 
Office, setting forth with particularity facts which satisfy the 
Register that in the absence of the general disruption or suspension of 
postal or other transportation or communications services, the material 
would have been received by the Copyright Office by a particular date.
    (f) For purposes of paragraph (b) of this section, the Register 
shall presume that but for the general disruption or suspension of 
postal or other transportation or communications services,
    (i) Materials deposited with the United States Postal Service for 
delivery by means of first class mail would have been received in the 
Copyright Office seven days after deposit with the United States Postal 
Service;
    (ii) Materials deposited with the United States Postal Service for 
delivery by means of Priority mail would have been received in the 
Copyright Office three days after deposit with the United States Postal 
Service;
    (iii) Materials deposited with the United States Postal Service for 
delivery by means of Express mail would have been received in the 
Copyright Office one day after deposit with the United States Postal 
Service;
    (iv) Materials deposited with a delivery service such as, or 
comparable to, United Parcel Service, Federal Express, or Airborne 
Express, would have been received in the Copyright Office on the date 
indicated on the receipt from the delivery service.
    (g) Requests pursuant to paragraph (b) of this section shall be 
addressed to: Chief, Copyright Office Receiving & Processing Division, 
Copyright Office, and if delivered by hand they should be brought to 
the Copyright Office Public Information Office, Library of Congress, 
James Madison Memorial Building, Room 401, First and Independence 
Avenue, SE., Washington, DC. If mailed, the request should be addressed 
to Chief, Receiving & Processing Division, P.O. Box 71380, Washington, 
DC 20024-1380.


[[Page 62945]]


    Dated: November 26, 2001.
Marybeth Peters,
Register of Copyrights.
    Approved by:
James H. Billington,
Librarian of Congress.
[FR Doc. 01-30013 Filed 12-3-01; 8:45 am]
BILLING CODE 1410-30-P