[Federal Register Volume 70, Number 140 (Friday, July 22, 2005)]
[Proposed Rules]
[Pages 42286-42292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14516]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 202

[Docket No. RM 2005-9]


Preregistration of Certain Unpublished Copyright Claims

AGENCY: Library of Congress, Copyright Office.

ACTION: Notice of Proposed Rulemaking

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SUMMARY: Pursuant to the Artists' Rights and Theft Prevention Act of 
2005, the Copyright Office is proposing regulations for the 
preregistration of unpublished works that are being prepared for 
commercial distribution in classes of works that the Register of 
Copyrights determines have had a history of pre-release infringement.

DATES: Comments are due no later than August 22, 2005. Reply comments 
are due no later than September 7, 2005.

ADDRESSES: If hand delivered by a private party, an original and five 
copies of any comment should be brought to Room LM-401 of the James 
Madison Memorial Building between 8:30 a.m. and 5 p.m. and the envelope 
should be addressed as follows: Office of the General Counsel, U.S. 
Copyright Office, James Madison Memorial Building, Room LM-401, 101 
Independence Avenue, SE., Washington, DC 20559-6000. If hand delivered 
by a commercial courier, an original and five copies of any comment 
must be delivered to the Congressional Courier Acceptance Site located 
at Second and D Streets, NE., Washington, DC, between 8:30 a.m. and 4 
p.m. The envelope should be addressed as follows: Copyright Office 
General Counsel, Room LM-403, James Madison Memorial Building, 101 
Independence Avenue, SE., Washington DC. If sent by mail, an original 
and five copies of any comment should be addressed to: Copyright GC/
I&R, P.O. Box 70400, Southwest Station, Washington, DC 20024-0400. 
Comments may not be delivered by means of overnight delivery services 
such as Federal Express, United Parcel Service, etc., due to delays in 
processing receipt of such deliveries.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
Charlotte Douglass, Principal Legal Advisor, P.O. Box 70400, 
Washington, DC 20024-0400, Telephone (202) 707-8380. Telefax: (202) 
707-8366.

SUPPLEMENTARY INFORMATION:

I. Background

    This Notice of Proposed Rulemaking implements Section 104 of the 
Family Entertainment and Copyright Act, enacted April 27, 2005. Among 
other things, this new law permits owners of works in certain classes 
that have experienced a history of infringement prior to commercial 
distribution to preregister a work prior to its publication during the 
period when the work is being prepared for commercial distribution.
    On April 27, 2005, President Bush signed the Family Entertainment 
and Copyright Act (``FECA''). Pub. L. No. 109-9, 119 Stat. 218. Title I 
of FECA is the Artists' Rights and Theft Prevention Act of 2005, or 
``ART Act,'' which among other things addresses copyright infringement 
of works committed prior to their authorized commercial distribution, 
or pre-release infringement. It includes, in section 103, new criminal 
penalties for certain acts of pre-release infringement. Section 104 
directs the Copyright Office to conduct a rulemaking proceeding to 
establish a procedure for preregistration of unpublished works that are 
being prepared for commercial distribution. The regulations are to be 
in place not later than 180 days after enactment of the ART Act, i.e., 
by October 24, 2005. This notice proposes those regulations and seeks 
public comment prior to the announcement of final regulations.
    Sections 103 and 104 of the ART Act were enacted in response to the 
increasingly serious problem of pre-release infringement. As Senator 
Hatch, the sponsor of the legislation, stated upon introducing the ART 
Act, ``Obviously, the increasingly frequent situation of copyrighted 
works being distributed illegally via the Internet before they are even 
made available for sale to the public severely undercuts the ability of 
copyright holders to receive fair and adequate compensation for their 
works.'' 151 Cong. Rec. S495 (daily ed. Jan. 25, 2005). Senator Cornyn, 
a cosponsor, explained that the legislation ``focuses on the most 
egregious form of copyright piracy plaguing the entertainment industry 
today--the piracy of film, movies, and other copyrighted materials 
before copyright owners have had the opportunity to market fully their 
products.'' Id. at S498.
    Copyright owners persuaded Congress that the existing rules making 
copyright registration a prerequisite for suit for infringement of 
United States works\1\ and a prerequisite for awards of attorney's fees 
and statutory damages are unduly burdensome on plaintiffs seeking 
relief against pre-release infringement in civil suits for copyright. 
Because works intended for publication usually are not registered until 
they are in final form and are being disseminated to the public, most 
copyright owners' usual registration practices make it difficult to 
file suit and obtain full relief in cases of pre-release infringement. 
Accordingly, representatives of record companies and motion picture 
studios sought amendments to sections 411 and 412 of the Copyright Act 
that would remove the registration requirement in cases of pre-release 
infringement. Rather than take such an action that would weaken the 
incentive to register, Congress chose instead to instruct the Copyright 
Office to create a process which would permit copyright owners of works 
that have not yet been published and are being prepared for commercial 
distribution to preregister those works.
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    \1\ For the definition of ``United States work,'' see 17 U.S.C. 
101. United States works include, among others, works first 
published in the United States and unpublished works by United 
States authors.
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    Preregistration is not a substitute for registration, but is a 
preliminary step prior to a full registration that will take place 
after the work has been published or infringed.

II. Statutory Provisions

    The ART Act amends section 408 of the Copyright Act to add a new 
subparagraph (f), which directs the Register of Copyrights to allow 
preregistration for any work that is in a class of works that the 
Register determines has had a history of infringement prior to 
authorized commercial distribution. A person who has preregistered a 
work is required under section 408 to follow through with a 
registration of the work within 3

[[Page 42287]]

months after the work has first been published. The ART Act also amends 
sections 411(a) and 412 to provide that in a copyright infringement 
lawsuit, preregistration will conditionally satisfy the registration 
requirements of sections 411(a) and 412, but only if the copyright 
owner follows through with a registration either within three months 
after the first publication of the work or one month after the 
copyright owner has learned of the infringement. Where a preregistered 
work is not registered within the prescribed time period, a court must 
dismiss an action for copyright infringement that occurred before or 
within the first two months after first publication. See 17 U.S.C. 
408(f), 411(a) and 412. However, the legislative history explains: ``By 
its express terms, the prohibition on infringement suits contained in 
Section 408(f)(4) does not apply to suits concerning infringements 
commencing later than 2 months after first publication of a copyrighted 
work that had been preregistered with the Copyright Office. Therefore, 
notwithstanding a failure to meet the deadlines set forth in Section 
408(f)(4) (A) and (B), a copyright owner of a preregistered work can 
register his or her work under current law and bring infringement 
actions for infringements occurring more than 2 months after first 
publication.'' H. R. Rep. 109-33, pt. 1, at 5 (2005).

III. Eligibility for Preregistration

    The legislative history offers some guidance on how the Register is 
to determine what classes of works are eligible for preregistration. 
``Section 104 expressly requires the Register of Copyrights to issue 
regulations to establish a preregistration system for copyrighted 
works. Since works are generally not formally registered until they are 
in final form and ready for distribution to the public, civil remedies 
for the distribution of pre-release works are lacking. This section 
will give the Register flexibility to determine which classes of works 
are appropriate for preregistration. The Committee believes that a 
class of works with only a few instances of infringement prior to 
authorized commercial distribution does not meet the test of a `history 
of infringement' but otherwise leaves the decision to the Register of 
Copyrights.'' H.R. Rep. No. 109-33, pt. 1, at 4.
    Of primary importance, then, is the Register's determination of the 
boundaries between classes of works that are eligible for 
preregistration and those that are not. Preregistration is limited to 
unpublished works being prepared for commercial distribution in a class 
of works that have already experienced more than a few instances of 
pre-release infringement.
    A work submitted for preregistration must fulfill three conditions: 
the work must be unpublished; the work must be in the process of being 
prepared for commercial distribution; and the work must fall within a 
class of works determined by the Register to have had a history of 
infringement prior to authorized commercial distribution. These 
conditions contain terms with special meanings within the purview of 
copyright law in general, and in one case, within the purview of this 
preregistration regulation.
    A. Unpublished Status
    To be eligible for preregistration, a work must be unpublished at 
the time of its submission to the Copyright Office. Otherwise, the work 
should be registered in published form and should be deposited with the 
Copyright Office for the Library of Congress. Publication in the 
copyright sense means ``the distribution of copies or phonorecords of a 
work to the public by sale or other transfer of ownership, or by 
rental, lease, or lending.'' 17 U.S.C. 101. Others may not be so 
familiar with the section of the definition which reads ``the offering 
to distribute copies or phonorecords to a group of persons for purposes 
of further distribution, public performance or display constitutes 
publication.'' Id. Consequently a work can be published, for example, 
if it is in existence and has been offered to a group of disc jockeys 
for purposes of public air play. A work is also published if it has 
been delivered to a number of distributors for purposes of theatrical 
exhibition.
    B. Work Prepared for Commercial Distribution
    The second condition for eligibility of a work for preregistration 
is that a work must be in the process of being prepared for commercial 
distribution. Although section 103(a)(3) of the ART Act, governing 
criminal copyright infringement, provides a definition of ``work being 
prepared for commercial distribution,'' that definition applies only to 
that particular subsection of the ART Act and presumably has no weight 
in determining what is a ``work being prepared for commercial 
distribution'' for purposes of preregistration. However, the 
legislative history offers no other guidance. Certainly, to be entitled 
to preregistration in preparation for civil enforcement, a copyright 
owner must have taken some steps preparatory to distribution to the 
public. The question is, how extensive must those steps have been? Is 
it sufficient that the copyright owner has a subjective intent to 
distribute the work once it has been finished? If that were all that 
was required, then arguably all works of authorship would qualify for 
preregistration; presumably, it is a rare author who does not believe 
his or her work is destined to reach its audience. Yet, some reasonable 
limits must be placed on what is to be considered a ``work being 
prepared for commercial distribution,'' lest virtually all works be 
considered to fall within that category. Similarly, as is discussed 
below, it seems unlikely that classes of works that have a history of 
prerelease infringement would include works whose authors have the 
subjective hope or intention to distribute, but for which no 
arrangements to distribute have been made.
    In determining what is meant, in the context of preregistration, by 
``a work being prepared for commercial distribution,'' the background 
to the enactment of section 104 of the ART Act and the purposes of that 
section should be taken into account. As noted above, section 104 was 
the result of requests by record companies and motion picture studios 
for relief, in the context of pre-release infringement, from the 
provisions of sections 411 and 412 that require copyright registration 
as a prerequisite to suit and to certain remedies for infringement. 
Their concern, and the concern of the Congressional sponsors of the ART 
Act, was primarily with the relatively recent phenomenon of 
infringement on the Internet, e.g., by means of peer-to-peer file-
sharing networks, of sound recordings and motion pictures prior to 
their official release to the public. One of the most striking examples 
before Congress related to the appearance on the Internet, two weeks 
before its theatrical premiere in 2003, of the motion picture The 
Incredible Hulk. As the ranking Member of the House Subcommittee on 
Courts, the Internet and Intellectual Property observed when the House 
Judiciary Committee favorably reported FECA, ``Pirates will always seek 
treasure, and where they have truly found gold is in obtaining a pre-
released copy of a movie, sound recording or video game. In testimony 
on this issue almost two years ago, industry representatives testified 
that two weeks before the motion picture The Hulk was to be released in 
theaters, an incomplete work print version of the film had been 
illegally uploaded onto the Internet. In fact, reviews for The Hulk 
were available before its release in theaters. The harm to the market 
of a copyrighted work exponentially increases if the work is released 
before

[[Page 42288]]

the editing or promotion for the product is completed.'' Prepared 
Statement of the Honorable Howard L. Berman, H.R. Rep. No. 109-33, pt. 
1, at 65. See also Piracy Deterrence and Education Act of 2003: Hearing 
Before the Subcommittee on Courts, the Internet, and Intellectual 
Property of the Committee on the Judiciary House of Representatives, 
108th Cong. 61 (2003) (Statement of Maren Christensen, then Vice 
President, Intellectual Property Counsel, Universal Studios).
    In short, the problem identified by Congress when it enacted the 
preregistration requirement was the phenomenon of infringement on the 
Internet of works that are truly en route to commercial distribution. 
Therefore, in order to qualify for preregistration, the creator of a 
work must have taken some significant action to place the work in the 
stream of commerce. On the other hand, we recognize that pre-release 
infringement may take place even before a work has been completed. 
Somebody who manages to get his or her hands on the dailies\2\ for one 
day's filming of the next ``Harry Potter'' film and who posts that 
footage on the Internet is engaging in a serious act of infringement of 
that film, even if the filming of the motion picture is still in 
progress. One who places Norah Jones' recording of a single cut from a 
forthcoming album can cause serious harm, even while she is still in 
the recording studio completing the album.
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    \1\ ``Dailies'' (also known as ``rushes'') are ``The first 
positive prints made from the negatives photographed on the previous 
day. During filming, the director and some actors may view these 
dailies as an indication of how the filming and the actors' 
performances are progressing.'' IMDb Film Glossary, http://us.imdb.com/Glossary/D.
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    It seems reasonable to set the threshold for works being prepared 
for commercial distribution not at the doing of any particular act of 
distribution, which would be too harsh a requirement to protect works 
destined for commercial distribution that are in relatively early 
stages of preparation, but rather at some earlier stage. We can 
identify two requirements that appear to be reasonably calculated to 
meet the statutory requirement that the preregistered work is truly 
being prepared for commercial distribution. First, preparation of the 
work must have commenced. That means, at a minimum, that some portion 
of the work has been fixed in a tangible medium of expression. See 17 
U.S.C. 101 (definition of ``created'': ``A work is `created' when it is 
fixed in a copy or phonorecord for the first time; where a work is 
prepared over a period of time, the portion of it that has been fixed 
at any particular time constitutes the work as of that time, and where 
the work has been prepared in different versions, each version 
constitutes a separate work.'').
    Second, a contract must have been entered into for distribution of 
the work. For a sound recording, the contract would be with a record 
company. For a motion picture, the contract would be with a motion 
picture studio. In the absence of such a contractual relationship - or 
of some other objective evidence that the work ultimately will be 
commercially distributed - the determination of whether a work is truly 
being prepared for commercial distribution would be subjective. 
Moreover, it is reasonable to conclude that the signing of a recording 
contract or a motion picture distribution agreement will be the first 
step down the road of commercial distribution. We elaborate on this 
requirement in our discussion of the next topic: the determination of 
classes of works that have had a history of pre-release infringement.
    C. Classes of Works Determined to Have Had A History of Pre-Release 
Infringement
    The ART Act requires the Register to permit preregistration for 
works in those classes of works that she determines have had a history 
of infringement prior to authorized distribution. 17 U.S.C. 408(f)(2). 
This requires the Register to designate classes of works that she 
determines have had a history of pre-release infringement. As noted 
above, however, the legislative report confirms that the Register does 
not have discretion to permit preregistration for classes of works that 
have had only a few instances of infringement in pre-release form. H. 
R. Rep. No. 109-33, at 4.
    The Copyright Office was involved in discussions with Congress 
leading up to the passage of this legislation; it is therefore aware of 
the cases made by record companies and motion picture studios to 
Congress that pre-release infringement has been a serious problem in 
their industries. Pre-release infringement of motion pictures and sound 
recordings has also been reported in the press. See, e.g., ``Suspect in 
Movie Piracy Is Fugitive; Man Charged with Videotaping Films at Pre-
Release Screenings Flees Days before Trial,'' Los Angeles Times, Jan. 
10, 2004, p. B3; ``She's Burning Up; Madonna Blasts Pirates Who Try to 
Steal `Life,''' Newsday, Apr. 18, 2003, p. A14. We therefore propose to 
include motion pictures and sound recordings among the classes of works 
eligible for preregistration. Because sound recordings almost always 
include performances of musical works, we also propose to include 
nondramatic musical works that are performed on sound recordings as a 
class eligible for preregistration. As the legislative history notes, 
``a preregistration of a sound recording does not by itself constitute 
preregistration of the musical works embodied in the sound recording.'' 
H. R. Rep. No. 109-33, at 5. We do not propose that a preregistration 
of a sound recording would automatically constitute preregistration of 
any of the musical works on that recording. However, as is the case 
with current copyright registration practice, an applicant who is the 
copyright owner of both a sound recording and a musical work performed 
on that sound recording may preregister both the sound recording and 
the musical work in a single preregistration.
    Although this notice of proposed rulemaking does not propose any 
additional classes of works, the Office seeks comments on whether there 
are additional classes of works that have a history of pre-release 
infringement. Proponents of a class of works should be prepared to 
document more than ``a few instances'' of pre-release infringement. See 
H. R. Rep. No. 109-33, at 4. And although this notice proposes to 
include motion pictures, sound recordings and musical works among the 
eligible classes, the burden remains on proponents of those three 
classes of works to make the case to the Office that these classes of 
works have indeed experienced a history of pre-release infringement. 
Proponents of any class should be prepared to demonstrate that there is 
a substantial history of pre-release infringement which is likely to 
continue, causing harm to copyright owners that can be ameliorated by 
permitting preregistration of such works.
    The Office is also informed by its experience making previous 
determinations regarding classes of works in carrying out its 
responsibilities under the Digital Millennium Copyright Act (DMCA), 
Pub. L. No. 105-304, 112 Stat. 2860 (October 28, 1998). The DMCA added 
section 1201 to Title 17, requiring the Register to recommend ``classes 
of works,'' if any, that should be subject to exemption from one of the 
DMCA's anticircumvention provisions. In response to section 1201's 
mandate, the Register has been involved in triennial rulemaking 
proceedings to determine any classes of works that should be subject to 
an exemption from the prohibition against circumventing access control 
measures.

[[Page 42289]]

    Section 104 of the ART Act was drafted with section 1201's ``class 
of works'' provision in mind, and Congressional guidance on the meaning 
of the phrase ``class of works'' in section 1201 is instructive. In 
that context, the legislative history indicates an intent ``that the 
`particular class of copyrighted work' be a narrow and focused subset 
of the broad categories of works of authorship than [sic] is identified 
in section 102 of the Copyright Act (17 U.S.C. 102).'' Report of the 
House Committee on Commerce on the Digital Millennium Copyright Act of 
1998, H.R. Rep. No. 105-551, pt. 2, at 38 (1998).
    In the context of and in light of the purpose of preregistration - 
which is to afford a remedy to copyright owners of works which are 
likely to be subject to pre-release infringement, we believe that the 
proposed classes of works - motion pictures, sound recordings and 
nondramatic musical works - can be appropriately narrowed by focusing 
on the requirement that a distribution agreement be in place for the 
work that is being prepared for commercial distribution. To guard 
against the possibility of fraud, we believe that it would be prudent 
to include, as part of that requirement, that the distributor be an 
``established'' distributor of motion pictures or phonorecords, as the 
case may be. An ``established'' distributor is an entity that is 
actually in the business of commercial distribution of the class of 
works and that has actually engaged in commercial distribution of 
several such works in the past year. Because nondramatic musical works 
are now commercially exploited primarily in the form of prerecorded 
music, the requirement for a nondramatic musical work would be 
satisfied if there is in existence a distribution agreement to 
distribute phonorecords of a sound recording that includes a 
performance of the musical work.
    Such a requirement assists in ensuring that works subject to 
preregistration fall within classes in which there has been a history 
of infringement. We are not aware of any history or danger of pre-
release infringement of works for which the prospect of commercial 
distribution is so remote that no arrangements have been made for 
authorized distribution. The fact that in enacting the ART Act, 
Congress was responding to concerns of motion picture studios and 
record companies about pre-release infringement of their works further 
bolsters the conclusion that the focus of preregistration should be on 
works for which distribution agreements already exist. To the community 
of Internet infringers who are eager to offer a motion picture or 
phonorecord for downloading prior to its official release, there is no 
glory, cachet or profit in offering a work for which there is no 
demand, and the existence of an agreement to distribute a work is a 
reliable indicator of such demand, as well as being a reliable 
indicator that the work is truly being prepared for commercial 
distribution.
    We also propose to narrow the eligible classes of works further by 
reference to the nature of the distribution agreements. It appears that 
thus far, works that have been subject to pre-release infringement are 
works for which there is an anticipated demand. For motion pictures, 
that still means that the work will be distributed for theatrical 
exhibition. The Office also does not propose to include motion pictures 
for which the distribution agreements provide only for ``direct-to-
video'' or online distribution, since the Office has no reason to 
believe that those motion pictures, which presumably are much less in 
demand than motion pictures that will be distributed theatrically, have 
had a history of prerelease infringement. For sound recordings, that 
still means that the work will be distributed in physical phonorecords 
(e.g., CDs or DVDs). While we recognize that online distribution is 
becoming increasingly significant, it has not yet supplanted physical 
distribution as the principal means of disseminating motion pictures 
and sound recordings. Moreover, including works that are distributed 
only online would probably be overinclusive: anybody can make his or 
her work available for online distribution, even if there is no demand 
for the work. Because preregistration is intended for works that have 
had a history of prerelease infringement, the Office believes that 
including works for which the only distribution agreements relate to 
online distribution would be vastly overinclusive. Of course, over time 
that may well change and require that the Office reexamine those 
conclusions. We seek comments as to whether our assumptions are valid.
    In considering how to determine what classes of works should be 
included in the preregistration system, the Office has also weighed the 
possibility of requiring that such works be by authors or performers 
who have had some track record of success, or at least who have 
previously had their works released for commercial distribution. While 
we have chosen not to include such a requirement in the proposed rules, 
we seek comment on whether such a requirement is desirable and 
workable. One reason we have chosen not to include the requirement in 
the proposed rules is our uncertainty as to how one would determine 
whether a particular author or performer has a successful track record. 
We seek comments on whether our proposal is based on valid assumptions.
    Comments are sought as to whether the proposed classes of works are 
underinclusive or overinclusive, keeping in mind that the only works 
that are to be included are works being prepared for commercial 
distribution and that the Register is to designate only classes of 
works that have a history of pre-release infringement. Proponents of 
broader or additional classes of works should back up their proposals 
with evidence that responds to those requirements.
    The proposed classes are:
    1. Motion pictures subject to theatrical distribution contracts 
with established distributors of motion pictures; .
    2. Sound recordings subject to contracts for distribution of 
physical phonorecords with established distributors of phonorecords;.
    3. Nondramatic musical compositions performed in sound recordings 
subject to contracts for distribution of physical phonorecords with 
established distributors of phonorecords.

IV. Procedures for Preregistration

    A. Overview of Preregistration Process
    Preregistration is meant for those who wish to preregister a claim 
in a work which falls within a ``class of works that the Register 
determines has had a history of infringement prior to authorized 
commercial distribution.'' 17 U.S.C. 408(f)(2). As a general principle, 
preregistration will be as streamlined a process as possible. Persons 
wishing to preregister a copyright will be required to apply online, 
and the electronic application will require sufficient information to 
reasonably identify the work for which preregistration is sought, but 
no deposit materials will be required and the application will not be 
examined except to ascertain that all the necessary information has 
been provided.
    Preregistration is not a substitute for registration. It is simply 
a means of preserving the ability to satisfy the requirements of 
sections 411(a) and 412 of the Copyright Act by advising the Copyright 
Office prior to the publication of a work that the work is being 
prepared for commercial distribution, and following through with a 
registration shortly after publication or infringement of the work. The 
fact that a work has been preregistered does not mean that the 
Copyright Office

[[Page 42290]]

necessarily will register the work when an application for registration 
is submitted.
    A work that would not ultimately be eligible for copyright 
registration should not be submitted for preregistration. However, 
unlike registration, which is prima facie evidence of the validity of 
the copyright and of the facts stated in the certificate, 
preregistration carries no such presumptions. For that reason, the 
Office will not conduct the type of examination that is done with 
respect to copyright registration, and a preregistration will not be 
subject to cancellation.
    To preserve the legal benefits of preregistration, a preregistered 
work must be registered within one month after the copyright owner 
becomes aware of infringement but in no case later than three months 
after first publication. In this sense, preregistration is a prelude to 
full registration.

B. General Observations about Preregistration Procedure

1. Form PRE
    The Copyright Office is creating a new form which is specifically 
designed to elicit only basic information. The Form PRE must be 
submitted electronically and will be available only in that form, on 
the Copyright Office's website.
2. No Deposit Copy or Phonorecord Required
    Because preregistration is not a form of registration, but is 
simply an indication of an intent to register a work once it has been 
completed and/or published, there will be no deposit requirement. 
However, the application form should contain a detailed description of 
the work, keeping in mind that the description becomes an important 
part of the preregistration public record and that it will not be 
possible to cancel or expunge this record. The space limitation for the 
description on Application Form PRE is 2000 characters. The Office will 
not pass judgement on the adequacy of the description, but a court 
might well conclude, based on a comparison of the finished work with 
the description in the preregistration application, that the 
preregistration does not actually pertain to the work that is alleged 
to have been infringed.
3. Preregistration Fee
    The preregistration fee will be set to recover costs to establish 
the new system in the Copyright Office and provide the preregistration 
service. In principle, the fee should cover the actual cost to the 
Office of processing each preregistration, and the fees collected for 
preregistration should collectively cover the start-up costs for 
creating the new electronic preregistration program, spread over a 
period of time. In determining the appropriate fee that would meet 
those guidelines, a key element is an estimate of how many 
preregistrations will be received each year. While it is difficult to 
predict how many preregistrations will be received, the Office believes 
a reasonable estimate would be 300. If that estimate is accurate, then 
in order to recoup the costs of setting up the system over a period of 
five years, it would be necessary to charge a fee of $250. However, the 
Office recognizes that $250 would be a very substantial fee, and as a 
result it is proposed that the preregistration fee initially be set at 
$100, with the understanding that the fee will be reevaluated after 
several months of experience once the Office has a better idea of how 
many preregistrations will occur.
    The Office considered requiring prepayment of the registration fee 
as part of preregistration, in order to provide an additional 
inducement to follow through with a registration, but at this time the 
logistical problems of requiring prepayment appear to outweigh its 
benefits. The Office welcomes comment on establishing a system in the 
future whereby the applicant for preregistration simultaneously prepays 
the registration fee in order to facilitate and further encourage 
prompt registration.
4. Verification
    The applicant must verify under penalty of law that he or she is an 
author, a claimant, or other party authorized to submit the claim for 
the copyright owner and that the statements made in the preregistration 
application are correct to the best of the applicant's knowledge.
5. Numbering
    All preregistrations will be numbered with the prefix ``PRE'' and 
will be numbered consecutively. Preregistration claims will not be 
issued according to registration class, i.e., VA, PA, or TX.
6. Online Record.
    All completed preregistrations will be accessible through the 
Copyright Office's online database by title, author and claimant. 
Therefore, a search for preregistration records should enable discovery 
of the registration record for the same work. It is recognized that in 
some cases, for reasons such as changes in ownership and other changes 
that take place during the creation of a work, the title, author and/or 
claimant named on the preregistration form may be different from the 
actual title, author and claimant later identified in the registration 
record.
7. Notification of Preregistration.
    Upon completion of the preregistration, the Office will issue an 
email notification of preregistration to the claimant. Each e-mail will 
remind the claimant that a timely basic registration should be made as 
the follow-up to preregistration and that the application for basic 
registration should contain a reference to the preregistration number 
to enable the Office's preregistration and basic registration records 
for the particular work to be tied together through cross-entry of the 
two numbers.
    For further verification that a work has been preregistered, it 
will be possible to view the record for any preregistered work on the 
Copyright Office's website and to print that information. At this time, 
the Office does not anticipate sending a printed certificate or 
notification of preregistration, but we solicit comments on whether 
(and why) such a practice would be desirable.
8. No Cancellation or Correction of Preregistrations
    Once entered in Copyright Office records, a preregistration will 
not be cancelled. Thus, the Office will not expunge its records, for 
example, of an applicant's incorrect description of a work or other 
error. An applicant who acts promptly before issuance of notification, 
however, may withdraw an application for preregistration. However, it 
is anticipated that preregistrations will be processed shortly after 
they are submitted. Nor can a preregistration be corrected, 
supplemented, or amended after completion. Thus, for example, the 
Office will not accept a Form CA (supplementary registration) to 
correct or supplement the information in a preregistration record. An 
applicant who wishes to correct the record must submit another 
application for preregistration containing the corrected or omitted 
information.
9. Preregistration as a Single Work
    Just as a single registration may be made for a number of self-
contained works that are first published in a single unit of 
publication, see 37 C.F.R. Sec.  202.3(b)(3)(i)(A), preregistration may 
be made for all such works having the same copyright claimant if they 
will be first published in a single unit of publication. For example, 
if the same party owns the copyright in both a sound recording and the 
musical compositions embodied in the sound recording, both claims may 
be preregistered on one Form PRE.
10. Summary
    To summarize, an applicant who owns an exclusive right in an 
unpublished work being prepared for

[[Page 42291]]

commercial distribution that falls within one of the Register's 
determined classes of works may preregister that work in the name of 
the anticipated claimant with the Copyright Office on or after October 
24, 2005, by completing Application Form PRE online and paying the 
prescribed fee online by Deposit Account or Credit Card.

C. Preregistration Application Form - Electronic Only

    At this time, the Office anticipates that the application for 
preregistration will require that the applicant provide the following 
information:
1. Type of work being preregistered:
Motion picture subject to theatrical distribution contract with an 
established distributor of motion pictures;
Sound recording subject to contract for distribution of physical 
phonorecords with an established distributor of phonorecords; or
Nondramatic musical composition performed in sound recording subject 
to contract for distribution of physical phonorecords with an 
established distributor of phonorecords.
2. Title
3. Additional titles [optional]
4. Author (i.e., the person who is anticipated to be given on the 
basic application as author under the copyright law of the completed 
work when the basic, follow-up registration is made).
5. Claimant (i.e., the person who is anticipated to be given on the 
basic application as the owner of copyright in the completed work 
when the basic, follow-up registration is made).
6. Claimant Address.
7. Description of the work being claimed for preregistration. 
(Instructions will indicate that the description should be detailed 
and specific in order to identify the particular work for which 
preregistration is sought. The maximum length of the description 
will be 2000 characters - approximately 330 words.) Examples:
A. A motion picture should generally be described in terms such as 
the subject matter it treats or a plot summary or outline; the 
director, if known; major actors appearing in the motion picture, if 
known; the principal location of filming; and any other details 
which would assist in identifying the particular motion picture.
B. A sound recording should generally be described in terms such as 
the subject matter of the underlying work recorded; the performer or 
performing group, if known; the genre of the work recorded, e.g., 
classical, hard rock, blues; the principal recording location, if 
known; titles of the musical compositions being performed, if known, 
and any other characteristics of the recording which may help in 
identifying the particular recording.
8. Date on which creation of the work commenced.
9. Date of anticipated completion of the work.
10. Date of anticipated commencement of commercial distribution of 
the work.
11. Certification under penalty of law.
12. Name of person submitting the preregistration.

List of Subjects in 37 CFR Part 202

    Claims to copyright, Copyright, Registration requirements.

Proposed Regulations

    In consideration of the foregoing, the Copyright Office proposes to 
amend part 202 of 37 CFR, chapter II in the manner set forth below:

PART 202--REGISTRATION OF CLAIMS TO COPYRIGHT

    1. The authority citation for part 202 is revised to read as 
follows:

    Authority: 17 U.S.C. 408(f), 702

    2. The heading of Part 202 is revised to read as follows:
    PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT
    3. A new Sec.  202.16 is added to read as follows:
    Sec.  202.16 Preregistration of Copyrights
    (a) General. This section prescribes rules pertaining to the 
preregistration of copyright claims in works eligible for 
preregistration under Section 408(f) of 17 U.S.C.
    (b) Definitions. For the purposes of this section-
    (1) A work is in a class of works that the Register of Copyrights 
has determined has had a history of infringement prior to authorized 
commercial release if it is one of the following:
    (i) A motion picture subject to a theatrical distribution contract 
with an established distributor of motion pictures;
    (ii) A sound recording subject to a contract for distribution of 
physical phonorecords with an established distributor of phonorecords; 
or
    (iii) A nondramatic musical composition performed in a sound 
recording subject to a contract for distribution of physical 
phonorecords with an established distributor of phonorecords;
    (2) An established distributor of motion pictures is a person or 
entity that is actually in the business of commercial distribution of 
motion pictures and that has actually engaged in commercial 
distribution of two or more motion pictures within the past year.
    (3) An established distributor of phonorecords is a person or 
entity that is actually in the business of commercial distribution of 
phonorecords and that has actually engaged in commercial distribution 
of two or more phonorecords within the past year.
    (4) A work is being prepared for commercial distribution if:
    (i) Preparation of the work has commenced and at least some portion 
of the work has been fixed in a tangible medium of expression; and
    (ii) a contract has been entered into for the commercial 
distribution of the work to the public.
    (5) A work eligible for preregistration is a work that is:
    (i) Unpublished;
    (ii) Being prepared for commercial distribution; and
    (iii) In a class of works that the Register of Copyrights has 
determined has had a history of infringement prior to authorized 
commercial release.
    (c) Preregistration. (1) General. A work eligible for 
preregistration may be preregistered by submitting an application and 
fee to the Copyright Office pursuant to the requirements set forth in 
this section.
    (2)Works excluded. Works that are not copyrightable subject matter 
under title 17 of the U.S. Code may not be preregistered in the 
Copyright Office.
    (3) Application form. An application for preregistration is 
Electronic Form PRE. The application must be submitted electronically 
on the Copyright Office website at: [Address to be given in the final 
rule].
    (4) Preregistration as a single work. For the purpose of 
preregistration on a single application and upon payment of a single 
preregistration fee, all copyrightable elements that are otherwise 
recognizable as self-contained works, that are to be included and first 
published in a single unit of publication, and in which the copyright 
claimant is the same, shall be considered a single work eligible for 
preregistration.
    (5) Fee. (i) Amount. The filing fee for preregistration is $100.
    (ii) Method of payment. (A) Copyright Office deposit account. The 
Copyright Office maintains a system of Deposit Accounts for the 
convenience of those who frequently use its services and for those who 
file applications electronically. The system allows an individual or 
firm to establish a Deposit Account in the Copyright Office and to make 
advance deposits in that account. Deposit Account holders can charge 
preregistration fees against the balance in their accounts instead of 
using credit cards for each request of service. For information on 
Deposit Accounts, please download a copy of Circular 5, ``How to Open 
and Maintain a Deposit

[[Page 42292]]

Account in the Copyright Office,'' or write the Register of Copyrights, 
Copyright Office, Library of Congress, Washington, D.C. 20559.
    (B) Credit cards, debit cards and electronic funds transfer. The 
online preregistration filing system will provide options for payment 
by means of credit or debit cards and by means of electronic funds 
transfers. Applicants will be redirected to the Department of 
Treasury's Pay.gov website to make payments with credit or debit cards, 
or directly from their bank accounts by means of ACH debit 
transactions.
    (C) No refunds. The fee is not refundable.
    (6) Description. No deposit of the work being preregistered should 
be submitted with an application for preregistration. The 
preregistration applicant should submit a detailed description, of not 
more than 2,000 characters (approximately 330 words), of the work as 
part of the application. The description should be based on information 
available at the time of the application sufficient to reasonably 
identify the work. The Copyright Office will not review descriptions 
for adequacy except in extreme cases, but in an action for infringement 
of a preregistered work, the court may evaluate the adequacy of the 
description to determine whether the preregistration actually describes 
the work that is alleged to be infringed, taking into account the 
information available to the applicant at the time of preregistration. 
For motion pictures such a description should include the following 
information to the extent known at the time of filing: subject matter, 
a summary or outline, the director, the primary actors, the principal 
location of filming, and any other information that would assist in 
identifying the particular work being preregistered. For sound 
recordings and for nondramatic musical works, the identifying 
description should include the following information to the extent 
known at the time of filing: the subject matter of the work or works 
recorded, the performer or performing group, the genre of the work 
recorded (e.g., classical, pop, musical comedy, soft rock, heavy metal, 
gospel, rap, hip-hop, blues, jazz), the titles of the musical 
compositions being recorded, the principal recording location, and the 
composer(s) of the recorded musical compositions embodied on the sound 
recording and any other information that would assist in identifying 
the particular work being preregistered.
    (7) Examination. The Copyright Office will conduct only a limited 
examination of applications for preregistration, in order to ascertain 
whether the application describes a work that is in a class of works 
that the Register of Copyrights has determined has had a history of 
infringement prior to authorized commercial release. However, a work 
will not be preregistered unless an applicant has provided all of the 
information requested on the application and has certified that all of 
the information provided on the application is correct to the best of 
the applicant's knowledge.
    (8) Notification of preregistration. Upon completion of the 
preregistration, the Copyright Office will provide the claimant 
notification by email of the preregistration. The preregistration 
record will also be available to the public on the Copyright Office 
website, www.copyright.gov.
    (9) Effect of preregistration. Preregistration of a work offers 
certain advantages to a copyright owner pursuant to 17 U.S.C. 411 and 
412. However, preregistration of a work is not prima facie evidence of 
the validity of the copyright or of the facts stated in the application 
for preregistration or in the preregistration record. The fact that a 
work has been preregistered does not create any presumption that the 
Copyright Office will register the work upon submission of an 
application for registration.

    Dated: July 18, 2005
Marybeth Peters,
Register of Copyrights.
[FR Doc. 05-14516 Filed 7-21-05; 8:45 am]
BILLING CODE 1410-33-S