[Federal Register Volume 68, Number 247 (Wednesday, December 24, 2003)]
[Rules and Regulations]
[Pages 74481-74483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31774]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 259

[Docket No. 2003-4 CARP]


Filing of Claims for DART Royalty Funds

AGENCY: Copyright Office, Library of Congress.

ACTION: Waiver of regulation.

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SUMMARY: Due to continuing delays in the receipt of mail, the Copyright 
Office of the Library of Congress is announcing alternative methods for 
the filing of claims to the DART royalty funds for the year 2003. In 
order to ensure that claims are timely received, claimants are 
encouraged to file their DART claims online or by fax, utilizing the 
special procedures described in this document.

EFFECTIVE DATE: January 1, 2004.

ADDRESSES: Claims may be filed online through the Copyright Office Web 
site at http://www.copyright.gov/carp/dart/index.html. Submissions by 
facsimile should be sent to (202) 252-3423. Submissions sent by a 
commercial courier must be delivered to the Congressional Courier 
Acceptance Site, located at 2nd and D Streets, NE., between 8:30 a.m. 
and 4 p.m. If sent by mail, an original and two copies of each claim 
should be addressed to: Copyright Arbitration Royalty Panel (CARP), 
P.O. Box 70977, Southwest Station, Washington, DC 20024. If hand 
delivered by a party, an original and two copies of each claim should 
be brought to: Office of the Copyright General Counsel, James Madison 
Memorial Building, room 403, First and Independence Avenue, SE., 
Washington, DC 20540. See SUPPLEMENTARY INFORMATION for information 
about online electronic filing through the Copyright Office Web site.

FOR FURTHER INFORMATION CONTACT: William J. Roberts, Jr., Senior 
Attorney, Susan Grimes, CARP Specialist, or Ralphael Small, Telephone: 
(202) 707-8380. Telefax: (202) 252-3423.

SUPPLEMENTARY INFORMATION: 

Background

    Chapter 10 of the Copyright Act, 17 U.S.C., places a statutory 
obligation on manufacturers and importers of digital audio recording 
devices and media (``DART'') who distribute the products in the United 
States to submit royalty fees to the Copyright Office. 17 U.S.C. 1003. 
Distribution of these royalty fees may be made to any interested 
copyright owner who has filed a claim and (1) whose sound recording was 
distributed in the form of digital musical recordings or analog musical 
recordings and (2) whose musical work was distributed in the form of 
digital musical recordings or analog musical recordings or disseminated 
to the public in transmissions. 17 U.S.C. 1006.
    Section 1007 provides that claims to these royalty fees must be 
filed ``[d]uring the first 2 months of each calendar year'' with the 
Librarian of Congress ``in such form and manner as the Librarian of 
Congress shall prescribe by regulation.'' 17 U.S.C. 1007. Part 259 of 
title 37 of the Code of Federal Regulations sets forth the procedures 
for the filing of claims to the DART royalty funds. Section 259.5 
states that in order for a claim to be considered timely filed with the 
Copyright Office, the claims either have to be hand delivered to the 
Office by the last day in February \1\ or if sent by mail, received by 
the Office by the last day in February or bear a January or February 
United States Postal Service postmark. 37 CFR 259.5(a). Claims received 
after the last day in February will be accepted as timely filed only 
upon proof that the claim was placed within the United States Postal 
Service during the months of January or February. 37 CFR 259.5(e). A 
January or February postmark of the United States Postal Service on the 
envelope containing the claim or, if sent by certified mail return 
receipt requested, on the certified mail receipt constitutes sufficient 
proof that the claim was timely filed.\2\ 37 CFR 259.5(e). The 
regulations do not provide for the filing of DART claims by alternative 
methods such as online submission or facsimile transmission.
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    \1\ In any year in which the last day of February falls on 
Saturday, Sunday, a holiday or other nonbusiness day within the 
District of Columbia or the Federal Government, claims received by 
the Copyright Office by the first business day in March, or properly 
addressed and deposited with sufficient postage with the United 
States Postal Service and postmarked by the first business day in 
March, shall be considered timely filed. 37 CFR 259.5(b).
    \2\ Claims dated only with a business meter that are received 
after the last day in February will not be accepted as having been 
timely filed. 37 CFR 259.5(c).
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    In the year 2001, due to severe disruptions in the delivery of mail 
to the Office caused by threat of possible anthrax contamination, the 
Copyright Office waived the regulations requiring that claims bear 
``the original signature of the claimant or of a duly authorized 
representative of the claimant,'' 37 CFR 259.3(b), and prohibiting the 
filing by ``facsimile transmission,'' 37 CFR 259.5(d), for the filing 
of claims to the DART royalty funds for the year 2001. See 67 FR 5213 
(February 5, 2002). Due to continued security measures affecting the 
delivery of mail, the Copyright Office waived regulations for the 
filing of 2002 DART claims last year as well. Certain incoming mail 
continues to be irradiated and all mail is diverted to an off-site 
location for screening, resulting in delays in its delivery to the 
Office. In light of these continuing delays, the Office once again is 
waiving Sec. Sec.  259.3(b) and 259.5(d) and allowing the online and 
facsimile submission of DART claims to the 2003 royalty funds. Online 
forms are available and may be submitted via the Office's Web site. 
Note however, that the alternative methods set forth in this Notice 
apply only to the filing of DART claims for the 2003 royalties which 
are due by March 1, 2004, and in no way apply to other filings with the 
Office. Please note that as a result of the last date in February 
occurring on a Sunday this year, the DART claims are due on Monday, 
March 1, 2004, in accordance with 37 CFR 259.5(b).
    This Notice covers only the means by which claims may be accepted 
as timely filed; all other filing requirements, such

[[Page 74482]]

as the content of claims, remain unchanged, except as noted herein. See 
37 CFR part 259.

Acceptable Methods of Filing DART Claims for the Year 2003

    Claims to the 2003 DART royalty funds may be submitted as follows:
a. Online Submission
    In order to best ensure the timely receipt by the Copyright Office 
of DART claims, the Office strongly encourages claimants to file their 
claims online by February 29, 2004, via the Copyright Office Web site. 
The Office has devised online electronic forms for filing both single 
and joint DART claims. Claimants will be able to access and complete 
the forms via the Copyright Office Web site and may submit the forms 
online as provided in the instructions accompanying the forms. DART 
forms will be posted on the Office Web site at http://www.copyright.gov/carp/dart/index.html. Claimants filing a joint claim 
may list each of their joint claimants directly on the Office's online 
joint claim form or may submit the list of joint claimants as a file 
attachment to the submission page. Lists of joint claimants sent as an 
attachment must be in a single file in either Adobe Portable Document 
(``PDF'') format, in Microsoft Word Version 2000 or earlier, in 
WordPerfect 9 or earlier, or in ASCII text. There will be a browse 
button on the form that will allow claimants to attach the file 
containing the list of joint claimants and then to submit the completed 
form to the Office. The attachment must contain only the list of names 
of joint claimants. Joint claims with attachments containing 
information other than the joint claimants' names will be rejected.
    The DART forms will be available for use during the months of 
January, February and on March 1, 2004. It is critically important to 
follow the instructions in completing the forms before submitting them 
to the Office. Claims submitted online using forms or formats other 
than those specified in this Notice will not be accepted by the Office. 
Claims filed online must be received by the Office no later than 11:59 
p.m. E.S.T. on March 1, 2004. Specifically, the completed electronic 
forms must be received in the Office's server by that time. Any claim 
received after that time will be considered untimely filed. Claimants 
will receive an electronic mail message in response stating that the 
Office has received their submission. Therefore, claimants utilizing 
this filing option are required to provide an e-mail address. Claimants 
submitting their claims online are strongly encouraged to send their 
claim no later than February 29, 2004, in order to avoid any unforseen 
delays in receipt of claims by the Office.
    When filing claims online, all provisions set forth in 37 CFR part 
259 apply except Sec.  259.3(b), which requires the original signature 
of the claimant or of the claimant's duly authorized representative on 
the claim. The Office is waiving this provision for this filing period 
because at this time the Office is not equipped to receive and process 
electronic signatures.
b. Facsimile
    Claims may be filed with the Office via facsimile transmission and 
such filings must be sent to (202) 252-3423. Claims filed in this 
manner must be received in the Office no later than 5 p.m. E.S.T. on 
March 1, 2004. The fax machine will be disconnected at that time. 
Claims sent to any other fax number will not be accepted by the Office.
    When filing claims via facsimile transmission, claimants must 
follow all provisions set forth in 37 CFR part 259 with the exception 
of Sec.  259.5(d), which prohibits the filing of claims by facsimile 
transmission. The Office is waiving this provision at this time in 
order to assist claimants in the timely filing of their claims.
c. By Mail
    Section 259.5(a)(2) directs claimants filing their claims by mail 
to send the claims to the Copyright Arbitration Royalty Panel, P.O. Box 
70977, Southwest Station, Washington, DC 20024. Claimants electing to 
send their claims by mail are encouraged to send their claims by 
certified mail return receipt requested, to have the certified mail 
receipt (PS Form 3800) stamped by the United States Postal Service, and 
to retain the certified mail receipt in order to provide proof of 
timely filing, should the claim reach the Office after March 1, 2004. 
In the event there is a question as to whether the claim was deposited 
with the United States Postal Service during the months of January, 
February, or on March 1, 2004, the claimant must produce the certified 
mail receipt (PS Form 3800) which bears a United States Postal Service 
postmark, indicating an appropriate date.
    Because of delays in the receipt of mail, claimants are urged not 
to use the mail as a means of filing their claims to the 2003 DART 
royalty funds. While the Office is not prohibiting the filing of claims 
by mail, those who do so assume the risk that their claim will not 
reach the Office in a timely manner. Claims sent by mail must be 
addressed in accordance with Sec.  259.5(a)(2), and the Office again 
strongly encourages the claimant to send the claim by certified mail 
return receipt requested, to have the certified mail receipt (PS Form 
3800) stamped by the United States Postal Service, and to retain the 
certified mail receipt, as it constitutes the only acceptable proof of 
timely filing of the claim. Claims dated only with a business meter 
that are received by the Office after March 1, 2004, will be rejected 
as being untimely filed.
    When filing claims by this method, claimants must follow all 
provisions set forth in 37 CFR part 259.
d. Hand Delivery
    Beginning December 29, 2003, the Library of Congress will no longer 
accept in-person, on site deliveries from non-governmental, commercial 
couriers or messengers. See 68 FR 70039 (December 16, 2003). Instead, 
couriers must deliver materials for staff at the Library of Congress, 
including claims to DART royalties, directly to the Congressional 
Courier Acceptance Site (``CCAS''), located on 2nd and D Streets, NE. 
The CCAS will accept items from couriers with proper identification, 
e.g., a valid driver's license, Monday through Friday between 8:30 a.m. 
and 4 p.m. The date of receipt as documented by CCAS will be considered 
the date of receipt by the Copyright Office for purposes of timely 
filing. Any claim received from CCAS which does not have a date stamp 
of March 1, 2004 or earlier, will be considered untimely for this 
filing period and rejected by the Copyright Office. Alternatively, if a 
party chooses to hand deliver its claim personally, it can still do so. 
However, it is possible that under the new system such deliveries may 
still be redirected to CCAS for processing. For this reason, claimants 
who choose to have their claims hand delivered to the Copyright Office 
are strongly encouraged to have their claims delivered by 4 p.m. on 
Friday, February 27, 2004. The Copyright Office cannot guarantee timely 
receipt of a hand delivered claim after this date.

Waiver of Regulation

    The regulations governing the filing of DART claims require ``the 
original signature of the claimant or of a duly authorized 
representative of the claimant,'' 37 CFR 259.3(b), and do not allow 
claims to be filed by ``facsimile transmission,'' 37 CFR 259.5(d). This 
Notice, however, waives these provisions as set forth herein solely for 
the purpose of filing claims to the 2003 DART royalties. The Office is 
not, and indeed cannot, waive the statutory

[[Page 74483]]

deadline for the filing of DART claims. See, United States v. Locke, 
471 U.S. 84, 101 (1985). Thus, claimants are still required to file 
their claims by March 1, 2004.
    Waiver of an agency's rules is ``appropriate only if special 
circumstances warrant a deviation from the general rule and such 
deviation will serve the public interest.'' Northeast Cellular 
Telephone Company v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990); see 
also, Wait Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), cert. denied, 
409 U.S. 1027 (1972). Under ordinary circumstances, the Office is 
reluctant to waive its regulations. However, the continuing delays in 
the receipt of the mail constitutes a special circumstance which has 
led the Office to deviate from its usual mail processing procedures. 
Thus, given the delays in the receipt of mail, the Office believes that 
the public interest will best be served by waiving, for this filing 
period, the requirement that DART claims bear the original signature of 
the claimant or of a duly authorized representative of the claimant, 
when, and only when, such claim is filed online through the Office's 
Web site. See 67 FR at 5214.
    The Office cannot waive the statutory deadline set forth in 17 
U.S.C. 1007 and accept claims filed after March 1, 2004. See Locke, 
supra. Therefore, in order to serve the public interest the Office is 
providing claimants with alternative methods of filing, in addition to 
those set forth in the regulations, in order to assist them in timely 
filing their claims. By allowing claims to be filed online and by 
facsimile transmission, the Office is affording to all claimants an 
equal opportunity to meet the statutory deadline.

    Dated: December 19, 2003.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 03-31774 Filed 12-23-03; 8:45 am]
BILLING CODE 1410-33-P