[Federal Register Volume 70, Number 146 (Monday, August 1, 2005)]
[Rules and Regulations]
[Pages 44049-44052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15137]


=======================================================================
-----------------------------------------------------------------------

LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. 2005-10]


Recordation of Documents

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of policy decision.

-----------------------------------------------------------------------

[[Page 44050]]

SUMMARY: This notice of policy decision clarifies three matters 
relating to practices concerning the recordation of documents 
pertaining to copyrights. First, it clarifies that a document will be 
indexed only under the titles appearing in the executed document. 
Second, it announces an interim practice on redaction of documents 
submitted for recordation, and states the intention of the Copyright 
Office to issue a notice of inquiry on the subject. Third, it provides 
notice that the Copyright Office is issuing a revised Document Cover 
Sheet.

DATES: Effective August 1, 2005.

FOR FURTHER INFORMATION CONTACT: Kent Dunlap, Principal Legal Advisor 
to the General Counsel. Telephone: (202) 707-8380. Telefax: (202) 707-
8366.

SUPPLEMENTARY INFORMATION:

1. Background Information

    Since 1870, the Copyright Office has recorded assignments and other 
documents relating to copyright. Although this function has been 
performed by the Office for over 100 years, the recordation process and 
the Office records concerning recordation are frequently misunderstood.
    Generally, the original document to be recorded is submitted to the 
Office. Recordation makes the contents of a document part of the public 
records of the Copyright Office. The recorded document speaks for 
itself. The Office creates a public record of the document; that record 
is available (and searchable) in the Office's online catalog. A 
document is indexed under the names of the parties and the titles of 
works listed in the executed document.
    When a document is recorded in the Copyright Office, that document 
is given a unique identifying number. The document is imaged and made 
available to the public for inspection and copying. The original 
document is returned to the sender with a certificate of recordation. 
The Office does not make determinations about the validity or effect of 
any document. Such determinations are within the purview of the courts.

2. Indexing of Titles

    It has been a longstanding written practice of the Copyright Office 
to require that the index of recorded documents will only include 
titles contained in the recorded document, and that principle is 
embodied in section 205 of the copyright law. In administering the 1909 
Copyright Act, Compendium of Copyright Office Practices I (1973) 
(Compendium I) made it clear that only titles that appeared in the 
document would be indexed and therefore appear in the records of the 
Office. Section 12.3.5. IV. provided as follows: ``Outside sources: A 
document will be indexed solely under the titles or other identifying 
matter it contains; no information or other information from sources 
outside the document will be supplied.''
    This principle was retained in the 1976 Copyright Act, which 
provides that recordation of a document provides constructive notice of 
the facts stated in the recorded document, but only if ``the document, 
or material attached to it, specifically identifies the work to which 
it pertains so that, after the document is indexed by the Register of 
Copyrights, it would be revealed by a reasonable search under the title 
or registration number of the work.'' 17 U.S.C. 205(c) (emphasis 
added).
    It is clear from the earliest discussions of this provision in the 
process of revision of the Copyright Act that the indexing by the 
Copyright Office, and the resulting constructive notice, would apply 
only to titles identified in the document or its attachments. The 
Report of the Register of Copyrights on the General Revision of the 
U.S. Copyright Law, House Comm. on the Judiciary, 87th Cong., 1st Sess. 
House Committee Print (1961), contains the following statement 
concerning ``blanket transfers'':

    (2) Blanket transfers.--In some cases a recorded transfer will 
cover ``all the copyrights'' owned by the transferor with no 
identification of the individual works. It may be extremely 
difficult and time-consuming for a third person to ascertain whether 
the copyright in a particular work is covered by such a blanket 
transfer. We believe the statute should indicate that constructive 
notice is confined to the copyrights in works specifically 
identified by the recorded instrument.

Id. at 96. Thus, the Register's discussion clearly anticipated that the 
revised statute would not provide for constructive notice for works 
that are not specifically identified in the agreement or other document 
being recorded.

    The provisions of the 1976 Act relating to documents, sections 204 
and 205, were generally settled on in 1965. The 1965 Supplementary 
Report of the Register of Copyrights on the General Revision of the 
U.S. Copyright Law: 1965 Revision Bill, House Comm. on the Judiciary, 
89th Cong., 1st Sess. at 230, House Committee Print (1965), explains 
the decision reflected in the statute with respect to requiring the 
specific titles to be included in a document for that document to be 
given constructive notice:

    Subsection (c) of section 205 implements another recommendation 
of the Report by providing that recordation of a document 
constitutes constructive notice of the facts it states only if ``the 
document, or material attached to it, specifically identifies the 
work to which it pertains so that, after the document is indexed by 
the Register of Copyrights, it would be revealed by a reasonable 
search under the title or registration number of the work; * * *.''

Id. at 77.

    The phrase ``or material attached to it'' means an appendix or 
attachment that was formally part of the executed document. It is a 
common practice for copyright transactions to include important terms 
or information in schedules, appendices, or other attachments as part 
of the document. This interpretation is consistent with the phrase 
``gives all persons constructive notice of the facts stated in the 
recorded document'' appearing in the first sentence of section 205(c). 
It is also consistent with the Office's practice under the 1909 
Copyright Act, and the legislative history as reflected in the 1961 
Report of the Register of Copyrights, and the 1965 Supplementary Report 
of the Register of Copyrights. Moreover, such a practice is consistent 
with the requirement in section 205(a) that a recorded document bear 
the signature of the person who executed it (or be accompanied by a 
sworn certification that it is a true copy of the original, signed 
document): the only reasonable reading of that requirement is that it 
does not permit recordation to extend constructive notice to 
information that was not part of the document at the time it was 
executed.
    Several years after enactment of the revision of the 1976 copyright 
law, the Copyright Office issued Compendium of Copyright Office 
Practices II (1984) (Compendium II), which implemented procedures with 
respect to the new copyright law. Chapter 1600 concerned recordation of 
documents, and subsections 1607.02(c)-1607.04 provided as follows:

1607.02(c)

    Blanket transfer. A blanket transfer, in which no individual 
titles are given, will be recorded without question. Example: 
``Copyrights in all the published works of John Doe are hereby 
assigned. * * *''

1607.03

    No titles given. When a document in which no titles are 
specified is recorded, the catalog entry will contain the notation: 
``No Titles Given.''

1607.04

    Outside sources. A document will be indexed solely under the 
titles or other

[[Page 44051]]

identifying matter it contains; no information from sources outside 
the document will be supplied. Thus, for example, the Copyright 
Office will not index titles given only in a covering letter.

    In order to streamline processing, the office suspended Chapter 
1600 of Compendium II regarding recordation of documents in 1992. 57 FR 
27074 (1992). In 1998, it issued a new Compendium Chapter 1600. The 
treatment of blanket transfers in former subsections 1607.02(c)-1607.4 
was simplified in new section 1608.03, which states: ``Outside sources. 
A document will be indexed only under the titles or other identifying 
matter it contains.'' This language actually returned to the language 
in Compendium I regarding practices under the 1909 Copyright Act. This 
reintroduction of the old language on ``outside sources'' into the new 
Compendium chapter meant no change in policy was intended.
    However, the Office has discovered that an informal practice had 
evolved in the Documents Section which permitted a party submitting a 
document to attach a listing of titles to a document which, as 
executed, lacked titles, and to index titles that did not appear in the 
document if those titles were listed in a document cover sheet supplied 
by the Office. It is not clear when, how or why this practice 
commenced. It has been discontinued.
    Copyright owners who wish to have titles of works appear in the 
index of recorded documents are cautioned to include a list of titles 
either in the body of the document or as an attachment made to the 
document before execution.

3. Redaction of Documents

    On January 4, 1978, the Copyright Office issued interim regulations 
implementing recordation procedures. 43 FR 771 (1978). The Office 
regulations require that a document submitted for recordation must be 
``complete on its face, and include any schedules, appendixes, or other 
attachments referred to in the document as being part of it.'' This 
provision has been included in the regulations since January 4, 1978. 
43 FR 771 (1978).
    In commenting on the interim regulation, the Authors League of 
America, Inc. requested that the requirement of completeness be 
clarified. 43 FR 35044 (1978). As a result, section 201.4(c)(2) was 
introduced into the regulation relating to the policies regarding 
attachments, and these clarifications remain as part of the regulations 
today. The commentary described these additions as ``our actual 
practices in the area.'' Id. at 35044. The current regulation reads as 
follows:

    (2) To be recordable, the document must be complete by its own 
terms.
    (i) A document that contains a reference to any schedule, 
appendix, exhibit, addendum, or other material as being attached to 
the document or made a part of it shall be recordable only if the 
attachment is also submitted for recordation with the document or if 
the reference is deleted by the parties to the document. If a 
document has been submitted for recordation and has been returned by 
the Copyright Office at the request of the sender for deletion of 
the reference to an attachment, the document will be recorded only 
if the deletion is signed or initialed by the persons who executed 
the document or by their authorized representatives. In exceptional 
cases a document containing a reference to an attachment will be 
recorded without the attached material and without deletion of the 
reference if the person seeking recordation submits a written 
request specifically asserting that: (A) The attachment is 
completely unavailable for recordation; and (B) the attachment is 
not essential to the identification of the subject matter of the 
document; and (C) it would be impossible or wholly impracticable to 
have the parties to the document sign or initial a deletion of the 
reference. In such exceptional cases, the Copyright Office records 
of the document will be annotated to show that recordation was made 
in response to a specific request under this paragraph.
    (ii) If a document otherwise recordable under this title 
indicates on its face that it is a self-contained part of a larger 
instrument (for example: If it is designated ``Attachment A'' or 
``Exhibit B''), the Copyright Office will raise the question of 
completeness, but will record the document if the person requesting 
recordation asserts that the document is sufficiently complete as it 
stands.
    (iii) When the document submitted for recordation merely 
identifies or incorporates by reference another document, or certain 
terms of another document, the Copyright Office will raise no 
question of completeness, and will not require recordation of the 
other document. 37 CFR 201.4(c)(2). In addition to the stated 
practices on attachments, there has been a longstanding practice of 
allowing financial information (e.g., a dollar amount) to be removed 
or blacked out. However, over the years larger redactions have been 
allowed. The Office generally has required that all pages be 
accounted for, meaning that if the text of an entire page was 
deleted, a blank page with the page number should be submitted at 
the appropriate place in the document with an indication that the 
entire page was redacted. This general policy, however, has been 
inconsistently applied.

    The Copyright Office has concluded that the requirement of 
completeness as expressed in the regulation and the informal 
practice of permitting substantial redactions are inconsistent. If 
the Office is to continue its present practice of permitting 
substantial redactions, such as policy and the scope of the allowed 
redaction should be explicitly stated in the regulations. Moreover, 
opportunity for public comment on this important policy should be 
provided through a notice of inquiry. Before the Office issues such 
a notice of inquiry, further study is necessary to determine the 
origins, purpose and extent of the completeness doctrine as 
expressed in the regulation and the redaction practices. In the 
interim, the Copyright Office will permit redactions under following 
terms and conditions:

    Interim Policy on Redaction of Documents. Documents containing 
blank or blocked-out sections, with the deletions initialed or 
labeled ``redacted,'' will be accepted for recordation if the 
document otherwise meets the recordation requirements and each page 
is accounted for, even if entire pages are redacted. Documents with 
missing pages will be returned as incomplete. The policies with 
respect to attachments as stated in 37 CFR 201.4(c)(2) will be 
applied, except that redactions will also be permitted in an 
attachment.

    Notwithstanding this interim policy, persons submitting documents 
for recordation are cautioned that they would be well-advised to be 
conservative in the practice of redacting material from the submitted 
documents, limiting their omissions to small amounts of sensitive 
information, such as financial terms. It is possible that excessive 
redaction might deprive the document of the constructive notice 
provided under section 205. The Office notes that under section 205(c), 
constructive notice applies only to ``facts stated in the recorded 
document.'' A document which has been substantially redacted would 
necessarily limit constructive notice to that which appears in the 
document as recorded and could raise questions as to whether the 
Office's regulations were complied with--that is, whether the Office 
should have recorded the document with such redactions. The Office's 
interim policy should not be read as suggesting that it is appropriate 
to redact large portions from a document submitted for recordation, and 
it is possible that a court would refuse to recognize constructive 
notice for such a document, or in some way limit the constructive 
notice. After the Office has completed its inquiry into this issue, 
taking into account comments it receives from the public in the future, 
it is possible that the Office may decide to eliminate the possibility 
of redaction entirely, or to limit its application. It is therefore 
advised that if redaction is used at all, it be limited to a small 
amount of sensitive information, such as financial terms.

4. Revised Document Cover Sheet

    In 1993, the Copyright Office made available an optional Document 
Cover Sheet in order to assist in recording documents. 58 FR 3297 
(1993). It was anticipated that cataloging would be simplified because 
titles and parties

[[Page 44052]]

would be more readily accessible from the cover sheet than from the 
document itself. It was discovered, however, that often information was 
designated in the cover sheet which did not appear in the document. As 
a result, the Copyright Office had to limit indexing strictly to 
information appearing in the document, and copyright owners may have 
misinterpreted the purpose of the cover sheet as permitting the 
addition to the public record of information outside of the document by 
listing it in the cover sheet.
    Despite the problems, the document cover sheet has been useful in a 
number of areas, particularly in providing a simple means to certify 
that a copy of a document bearing original signatures is a true and 
correct copy of the original document. For these reasons, the Copyright 
Office has issued a revised Document Cover Sheet retaining features 
which will assist in the processing of recording documents. While the 
revised Document Cover Sheet asks for identification of one party and 
one title for the purpose of connecting the Document Cover Sheet to the 
document, indexing will be based solely on the information appearing in 
the document. The Document Cover Sheet will remain optional, although 
its use is encouraged because it will assist in the recordation of 
submitted documents. Persons using the Document Cover Sheet should 
ensure that they use only copies dated 1/2005 or later, as indicated at 
the bottom of the page. Copies may be found on the Copyright Office Web 
site at http://www.copyright.gov/forms/formdoc.pdf. The Copyright 
Office continues to request that two copies of the Document Cover Sheet 
be submitted since one copy is used for imaging purposes, and the other 
copy is used to prepare the envelope for returning the document.

    Dated: July 26, 2005.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 05-15137 Filed 7-29-05; 8:45 am]
BILLING CODE 1410-30-P