Federal Register, Volume 73 Issue 199 (Tuesday, October 14, 2008)

[Federal Register Volume 73, Number 199 (Tuesday, October 14, 2008)]
[Proposed Rules]
[Pages 60658-60662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24269]

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LIBRARY OF CONGRESS

37 CFR Part 201

[Docket No. RM 2008-9]

Fees

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This notice of proposed rulemaking is issued to inform the
public that the Copyright Office of the Library of Congress is
considering adoption of new fees for registration of claims, special
services and Licensing Division services, and that the Office intends
to submit a schedule of

[[Page 60659]]

proposed new statutory fees and fees for certain other services to
Congress. The proposed fees would recover a significant part of the
costs to the Office of registering claims and provide full cost
recovery for many services provided by the Office which benefit only or
primarily the user of that service. The new fees are based on reliable
information regarding the costs of providing services, and reflect new
electronic processing of most claims implemented in the Copyright
Office in 2007.

DATES: Comments should be in writing and received on or before November
13, 20083.

ADDRESSES: If hand delivered by a private party, an original and ten
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 ten 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: Office of the General
Counsel, U.S. Copyright Office, LM 401, James Madison Building, 101
Independence Avenue, SE., Washington, DC. Please note that CCAS will
not accept delivery by means of overnight delivery services such as
Federal Express, United Parcel Service or DHL. If sent by mail
(including overnight delivery using U.S. Postal Service Express Mail),
an original and five copies should be addressed to U.S. Copyright
Office, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024.

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

SUPPLEMENTARY INFORMATION: Section 708 of the copyright law establishes
two separate procedures for adjusting fees for Copyright Office
services to account for increases in costs. For fees for services
specifically enumerated in section 708(a)(1)-(9), ``statutory fees,''
the fees are adjusted according to the procedures set forth in section
708(b). This procedure includes the completion of a cost study, and the
forwarding of an economic report and proposed fee schedule to Congress,
which takes effect unless Congress enacts a law within 120 days
disapproving of the new fees. The second procedure concerns fees for
services not specifically enumerated in section 708(a)(1)-(9), and for
the purposes of this rulemaking, these fees are termed ``discretionary
fees.'' For these fees, section 708(a) authorizes the Register to set
the fee at ``the cost of providing the service.'' As with the statutory
fees, the Copyright Office adjusts the discretionary fees after
conducting a cost study to determine the cost of providing the service.
The Copyright Office has instituted fee adjustments under this
provision on four separate occasions. The first schedule was adopted in
1999. See 63 FR 43426 (August 13. 1998) and 64 FR 29518 (June 1, 1999).
Three years later a second adjustment was made raising many copyright
fees, but leaving the basic registration fee at $30. 67 FR 38003 (May
31, 2002). The third fee adjustment was adopted in 2006, in which most
statutory fees were again raised due to an increase in costs. In this
instance, the basic registration fee was increased from $30 to $45. 71
FR 15368 (March 28, 2006) and 71 FR 31089 (June 1, 2006). The last fee
adjustment was adopted in 2007 establishing a lower basic registration
fee of $35 for copyright claims submitted electronically. 72 FR 33690
(June 19, 2007).
In the 2007 adjustment lowering the fee for electronic submission
of basic copyright registration, it was stated that fee adjustment
would likely be revisited once the electronic, online process for
registering a claim was operational for a sufficient period of time so
as to yield reliable information on the actual costs involved in
providing the service. Electronic submission of basic claims to
copyright was opened to beta testers in July 2007 with an increasing
number of beta testers added over the next 11 months. Beginning July 1,
2008, the Office made online, electronic submission of copyright claims
available to the general public, and it also introduced a new
application, Form CO. The advantage of Form CO is its 2-D barcode that
captures the information as entered online on the application form and
from which the Copyright Office retrieves the information for
processing.
The Office has gained experience in the past 15 months in using its
new IT system for processing three different types of submissions of
claims to copyright. Claims may be submitted electronically, by mailing
a completed Form CO that incorporates a 2-D barcode, or by submitting
existing paper forms, i.e., Forms PA, VA, SR, TX or SE. Each type of
submission requires a significantly different degree of effort to
process. Therefore, the Office is proposing a fee adjustment for each
of these three types of submissions to recover the appropriate portion
of the cost of providing such service.

I. Overview

The expenses of the Copyright Office have always been substantially
funded through the fees for providing services, although the percentage
of cost recovery has varied. For the last fifty years, cost recovery
through the charging of fees has ranged from 50% to 80% of the expenses
of the Copyright Office. In fiscal year 2005, the Copyright Office
collected $23,788,227 in fees, sufficient to offset 56.9% of the total
expenditures of the Copyright Office. In fiscal year 2006, during the
last three months of which higher fees applied, the Office collected
$24,126,884 in fees, sufficient to offset only 51.3% of the total
expenditures of the Copyright Office. In fiscal year 2007, the
Copyright Office collected $29,261,052 in fees, offsetting 60.5% of the
Copyright Office's total expenditures. Programs relating to mandatory
deposit, domestic and international copyright policy and public
information have been generally paid for by appropriated funds.
In order to meet the legal requirements for adjusting fees, the
Copyright Office undertook a cost study to evaluate the cost of its fee
services. Based upon that study, the Office proposes to adjust its fees
to reflect the costs associated with the reengineered processes. The
proposed new fees are being disclosed to the public at this time in
order to provide an opportunity for public comment. The Copyright
Office plans to implement the new fees on or about April 1, 2009.

II. Discretionary Fees

For services other than those mentioned in section 708(a)(1)
through (9) identified as ``other services'' in the law, and identified
in this notice as ``Discretionary Fees,'' the Register is authorized to
fix the fees at the actual cost of providing the service. The fees
proposed here are based on a study of the costs of providing these
services. Where costs have increased, the fees have been raised. In
some cases the fees remain the same, or where costs have decreased, the
fees have been lowered.
This notice will not discuss each fee increase individually where
fees have been adjusted either to recover the cost of the service or to
account for the rate of inflation since the last fee adjustment.
However, the Copyright Office believes

[[Page 60660]]

further clarification is useful for the following fees:
1. Recordation of an Interim Designation of Agent to Receive
Notification of Claimed Infringement under Sec. 512(c)(2) (Online
Service Provider Designation). The Copyright Office has recorded and
indexed designations of online service providers at a flat rate up to
the present time. In practice, some of these documents are very simple
while others include several or even many domain names that must be
indexed in the Office's online record. To recover the extra cost
associated with processing the larger number of domain names, the
Office proposes a fee for the filing itself, with an additional fee for
each group of 1 to 10 additional domain names.
2. Service Charge for Uncollectible and Non-negotiable Checks.
Before the reengineering of Copyright Office processes, the Office did
not register in-process claims and canceled completed registrations
when an uncollectible check was returned from the bank. Under the new
system, processing is merely suspended until the filer sends a valid
payment. Returning non-negotiable checks and writing for replacements
for failed payments is a direct cost to the Office. Modern businesses
recover such costs by imposing a service charge, and the Office is
adopting the same approach.
3. Licensing Division Fees. The Licensing Division of the Copyright
Office provides services related to statements of account for cable,
satellite, and DART usage. In this case, fees are set based on a
separate study relating to the budget and expenditures of the Licensing
Division. In addition, it charges fees for searching, certification and
copying of licensing records. These services are similar to those
performed by the Information and Records Division and the costs are
also parallel. Consequently, fees are adjusted on the basis of the cost
of providing the service regarding the filing of an Amended Statement
of Account in accordance with Sections 111, 112, 114, 119, & 1003,
Recordation of Licensing Agreement under Section 118; and search,
certification, and copying fees.
4. Refund Policy. The Copyright Office intends to harmonize its
refund policy with respect to refunds of fees for non-registration
services, including document recordation and Licensing Division non-
royalty fees. Heretofore, when a document that had been filed was not
recorded, the entire fee was refunded. In the future, the Office will
retain a portion of the fee to offset the administrative cost of
processing the request to record the document. In this case, under 37
CFR 201.6(c), the Office will retain a processing fee in an amount
equivalent to the minimum fee set for the service, and will refund only
the fees paid beyond that amount. With respect to the various Licensing
Division fees, the regulation will be applied in the same manner.

III. Statutory Fees

The Copyright Office now offers two additional options for filing
basic copyright claims beyond the traditional paper application:
electronic filing via the Office's new ``electronic Copyright Office''
(eCo) and filing a new application Form CO filled out and printed from
the Web site with the data encoded in 2-D barcodes.
In July 2006, the basic registration fee was increased to $45. At
that time, the Office established prospectively a lower fee of $35 for
filers who would use the electronic filing system still in development
at that time. In July 2007, when the system became available to the
public for beta testing, the lower fee was implemented. The cost study
just completed validates the lower fee, demonstrating a substantial
cost savings to the Office in processing electronic claims.
In its proposed schedule of fees, the Office has revised its
registration schedule and presents a three tier system for basic
registration fees to accommodate the addition of Form CO. On July 1,
2008, the Office implemented its new Form CO and 2-D barcode filing
option on its Web site. The 2-D barcode captures the data entered into
Form CO and, when scanned in the Office, populates the various fields
with the digitized data, eliminating the need for any transcription.
Users who complete the new Form CO on the Copyright Office Web site,
print it from the Web site, and submit it with the fee and deposit copy
or copies, will be charged a fee that is higher than the eCO filing
fee, but lower than the fee for paper filings using old applications
without the 2-D barcode. The fee level was determined from the cost
study for processing applications by stripping out the known costs that
would not be incurred in processing the Form CO claims. Review of the
costs associated with implementation of Form CO has demonstrated that
the deleted costs were in fact directly related to processing steps
avoided in processing these claims.
The highest fee for submission of a claim for registration is
reserved for filers who submit the traditional paper application forms.
The higher fee reflects the level of manual intervention required to
create the digitized information, and other associated costs. In turn,
these filers, like their counterparts, will receive a certificate
created from the digital data drawn from a scanned image of the
application.
In addition to the registration fees associated with basic
copyright registration, fees have been adjusted in some of the other
areas of copyright registration, as have other statutory fees. The
Copyright Office believes further clarification is useful for the
following fees:
1. Supplementary Registration and Additional Certificate of
Registration. These statutory fees are being adjusted downward. The
cost of providing these services has declined over recent years due to
automation of processing systems. In such circumstances, it is
appropriate to pass these savings on to the customer.
2. Group Registration for Database Updates, Group Registration for
Published Photographs, and Group Registration for Contributions to
Periodicals. In the case of these three group registration options, the
applicant files the traditional registration form, and in the case of
published photographs, the use of an adjunct form listing the
individual titles of the photographs. The fees for these groups are
exactly the same as the fees for claims in individual works in these
categories. A group submission reduces the Office's costs and is seen
as a win-win for the Office and its customers. The fees for these
groups will increase for paper fillings, in concert with the fees for
individual basic registrations. When group registration is available in
the 2-D barcode and electronic filing options, the fees will parallel
those for individual claims, as well.
3. Making and Reporting of a Search. The fee for searching and
preparing a report from Copyright Office records is adjusted for
inflation to maintain the current level of cost recovery. The Office
has determined, however, to apply a 2-hour minimum charge to searches
performed by the Records Research & Certification Division. This step
will bring the Office's charges more in line with the fees charged for
this service by providers in the private sector and will make recovery
fairly consistent with actual costs. The minimum fee for searches done
by the Licensing Division remains at the current rate of a 1-hour
minimum due to the limited scope of the typical search.
4. Notice of Intention to Obtain a Compulsory License under Section
115(b). This fee has not been adjusted since 1978 and it has become
both a windfall for filers who have only one

[[Page 60661]]

title in their notice and a burden for those notices with many titles.
The Office intends to balance the fee so that it is fairer to users and
better reflects the relative cost of processing the single-title versus
multiple-title notices, by charging a fee for processing the notice
itself, with an additional fee for each group of ten additional titles
beyond the first. The proposed fee is based on the cost of providing
this service and increases the basic filing fee, while reducing the
cost per title when multiple titles are included in the filing. This is
the same approach the Office uses to set fees for the recordation of a
document with additional titles and the recordation of an Interim
Designation of Agent to Receive Notification of Claimed Infringement
under Sec. 512(c)(2). The Office anticipates adjusting its processes
to accept electronic filings in the future, at which time, it will
consider an adjustment to these fees to reflect the efficiencies and
savings associated with electronic filings.

IV. Proposed New Statutory and Filing Fees

Based upon the cost study prepared by the Copyright Office, the
Copyright Office is proposing a new fee schedule for registration and
related services, special services, and Licensing Division services. A
comparison of existing and new fees is included in the following
charts:

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Current fees Proposed fees
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Registration, Recordation, and Related Services
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(1) Registration of a basic claim in an original work of authorship:
Form CO (electronic filing)............................................. $35 $35
Form CO (2-D barcode application completed online)...................... 45 50
Forms PA, SR, TX, VA, SE (paper filing)................................. 45 65
(2) Registration of a claim in a group of published photographs, database
updates, or contributions to periodicals (Form GR/CP):
Form CO (electronic filing, when available)............................. 35 35
Form CO (2-D barcode application completed online, when available)...... 45 50
Forms PA, SR, TX, VA, SE (paper filing)................................. 45 65
(3) Registration of a renewal claim (Form RE):
Claim without Addendum.................................................. 75 115
Addendum................................................................ 220 245
(4) Registration of a claim in a mask work (Form MW)........................ 95 105
(5) Registration of a claim in a group of serials (Form SE/Group) [per 25 25
issue, with minimum 2 issues]..............................................
(6) Registration of a claim in a group of daily newspapers and qualified 70 80
newsletters (Form G/DN)....................................................
(7) Registration of a claim in a restored copyright (Form GATT)............. 45 65
(8) Preregistration of certain unpublished works............................ 100 115
(9) Registration of a correction or amplification to a claim (Form CA)...... 115 100
(10) Providing an additional certificate of registration.................... 40 35
(11) Certification of other Copyright Office records (per hour)............. 150 165
(12) Search-report prepared from official records (per hour) [minimum 2 150 165
hours].....................................................................
Estimate of search fee.................................................. 100 115
(13) Location of Copyright Office records (per hour)........................ 150 165
Location of in-process materials (per hour)............................. 150 165
(14) Recordation of document, including a Notice of Intention to Enforce 95 105
(NIE) (single title).......................................................
Additional titles (per group of 10 titles).............................. 25 30
(15) Recordation of Notice of Intention to Make and Distribute Phonorecords 12 105
(single title).............................................................
Additional titles (per group of 10 titles).............................. N/A 20
(16) Recordation of an Interim Designation of Agent to Receive Notification 80 105
of Claimed Infringement under Sec. 512(c)(2) (single name)...............
Additional domain names (per group of 10 names)......................... N/A 30
(17) Issuance of a receipt for a Sec. 407 deposit......................... 20 30
(18) Registration of a claim in a vessel hull (Form D/VH)................... 200 220
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Special Services
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(1) Service charge for deposit account overdraft............................ 150 165
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Licensing Division Services
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(1) Recordation of a Notice of Intention to Make and........................ 12 105
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\1\ New item; fee not currently listed in 37 CFR 201.3(d).

[[Page 60662]]

V. Request for Comments

The Copyright Office is publishing the proposed new fees and
modification of the refund policy in order to provide the public with
an opportunity to comment on the proposed adjustments. The Office
anticipates implementation of the new fee schedule by April 1, 2009.

Dated: October 8, 2008.
Marybeth Peters,
Register of Copyrights.
[FR Doc. E8-24269 Filed 10-10-08; 8:45 am]
BILLING CODE 1410-30-P