[Federal Register Volume 77, Number 102 (Friday, May 25, 2012)]
[Proposed Rules]
[Pages 31237-31240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12652]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2012-4]
Electronic Filing in the Copyright Office of Notices of Intention
To Obtain a Section 115 Compulsory License
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Copyright Office is proposing to amend its regulations for
filing Notices of Intention to obtain a Section 115 compulsory license
with the Copyright Office to provide an option for electronically
filing the notice. By law, such notices may be filed in the Office only
when the public records of the Copyright Office do not identify the
copyright owner of the musical work and include an address at which
notice can be served. In addition, the Copyright Office is proposing to
clarify in its regulations that it does not examine Notices of
Intention filed with the Office for legal sufficiency and to include a
Privacy Act Advisory Statement.
DATES: Comments are due no later than 5:00 p.m. Eastern Daylight Time
July 9, 2012.
ADDRESSES: The Copyright Office strongly prefers that comments be
submitted electronically. A rulemaking page containing a comment form
is posted on the Copyright Office Web site at http://copyright.gov/docs/section115/efilings/comments/. The Web site interface requires
submitters to complete a form specifying name and organization, as
applicable, and to upload comments as an attachment via a browse
button. To meet accessibility standards, all comments must be
[[Page 31238]]
uploaded in a single file in either the Adobe Portable Document File
(PDF) format that contains searchable, accessible text (not an image);
Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII text file
format (not a scanned document). The maximum file size is 6 megabytes
(MB). The name of the submitter and organization should appear on both
the form and the face of the comments. All comments will be posted
publicly on the Copyright Office Web site exactly as they are received,
along with names and organizations. If electronic submission of
comments is not feasible, please contact the Copyright Office at 202-
707-8380 for special instructions.
FOR FURTHER INFORMATION CONTACT: Tanya Sandros, Deputy General Counsel,
or Stephen Ruwe, Attorney-Advisor, Copyright GC/I&R, P.O. Box 70400,
Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 707-
8366.
SUPPLEMENTARY INFORMATION:
I. Background
Section 115 of the Copyright Act, 17 U.S.C., provides that ``[w]hen
phonorecords of a nondramatic musical work have been distributed to the
public in the United States under the authority of the copyright owner,
any other person * * * may, by complying with the provisions of this
section, obtain a compulsory license to make and distribute
phonorecords of the work.'' 17 U.S.C. 115(a)(1).
Included among the conditions that must be met to use the Section
115 compulsory license is the requirement that a person who wishes to
obtain a compulsory license ``shall, before or within thirty days after
making, and before distributing any phonorecords of the work, serve
notice of intention to do so on the copyright owner. If the
registration or other public records of the Copyright Office do not
identify the copyright owner and include an address at which notice can
be served, it shall be sufficient to file the notice of intention in
the Copyright Office. The notice shall comply, in form, content, and
manner of service, with requirements that the Register of Copyrights
shall prescribe by regulation.'' 17 U.S.C. 115(b)(1).
In 2004, the Copyright Office (``Office'') amended 37 CFR 201.18,
the regulations governing Notices of Intention to obtain a Section 115
compulsory license (``Notices''), in order to make the license more
functional. 69 FR 34578 (June 22, 2004). Among the 2004 amendments to
37 CFR 201.18 was a provision that allowed that a Notice ``may
designate any number of nondramatic musical works, provided that the
copyright owner of each designated work or, in the case of any work
having more than one copyright owner, any one of the copyright owners
is the same and that the information required under paragraphs
(d)(1)(i) through (iv) of this section does not vary [i.e., name and
contact information of licensee; name and contact information of
primary entity making and distributing phonorecords, and information
concerning yearly accounting periods]. For purposes of this section, a
Notice which lists multiple works shall be considered a composite
filing of multiple Notices and fees shall be paid accordingly if filed
in the Copyright Office under paragraph (f) of this section (i.e., a
separate fee, in the amount set forth in Sec. 201.3(e)(1), shall be
paid for each work listed in the Notice).'' 37 CFR 201.18(a)(4). The
2004 amendments also allowed licensees to serve Notices directly on
copyright owners or designated agents by means of an electronic
transmission when the copyright owner or designated agent has a written
public policy that it can accommodate such submissions. 37 CFR
201.18(a)(7).
Earlier in the 2004 rulemaking process the Office also considered
whether to allow a licensee to file a Notice in the Office in an
electronic format. The Office determined that it was not prepared to
accept electronically filed Notices because it did not have in place
the systems that would accommodate such filings but that the Office
anticipated that such filings would be accepted in the future. The
Office did provide that in the case where the licensee intends to
license a high volume of nondramatic musical works under section 115
and would endure significant hardships if required to submit the
Notices under the standard practices, the licensee may contact the
Licensing Division of the Copyright Office to inquire whether special
arrangements could be made for submission of the Notice electronically.
69 FR 11566, 11570 (March 11, 2004).
The Office is aware of a growing need for an electronic filing
system for filing Section 115 Notices with the Copyright Office because
of the large number of works being used under the compulsory license
where service of the Notice cannot be made effectively on the copyright
owner. To meet this need, the Office is now preparing to accept
specific types of electronically filed Notices addressing multiple
nondramatic musical works. Hence, the Office is proposing to amend its
regulations in Sec. 201.18 by providing for use of an online system
for submission of Notices covering multiple nondramatic musical works.
II. Proposed Procedures and Regulatory Amendments
The Office proposes to amend its regulations to allow prospective
licensees to make electronic filings of Notices addressing multiple
nondramatic musical works, provided that the information required under
paragraphs (d)(1)(i) through (iv) of Sec. 201.18 does not vary. In
addition, the Office is proposing to clarify its rules for submission
of Notices in a paper format that contain multiple titles of
nondramatic musical works.
The Office has reviewed the Notices recently filed with the
Licensing Division in the traditional paper format and observed that
parties have filed such Notices that address multiple works for which
the public records of the Office do not identify the copyright owner.
Although paragraph (d)(1)(v)(C) of Sec. 201.18 requires that a Notice
include the copyright owner of the work only ``if known,'' the Office
has not questioned Notices filed in a paper format addressing multiple
works where such ``unknown'' ownership is shared across each work
addressed in the Notice, i.e., no copyright owner can be identified for
any of the works listed. Such paper filings do not present a problem
for the Office to process. The Office is now entering key pieces of
information, e.g., name of the song, licensee, and date received, from
the Notice into a spreadsheet (currently located on the Copyright
Office Web page at http://www.copyright.gov/licensing/115.pdf), making
it possible to identify easily who filed a Notice for a particular
work. However, because the current rules do not expressly address the
Office's acceptance of Notices with multiple titles in the case where
no copyright owner of any of the works can be identified, the Office
proposes to amend its regulations to clarify that a Notice filed in a
paper format may list multiple works in a single Notice when any of the
following circumstances apply: in the case where no copyright owner can
be identified from the Copyright Office records for any of the works
listed in the Notice; in the case where the copyright owner of each
work listed in the Notice is the same and the records of the Copyright
Office do not include an address at which notice can be served; or for
works having more than one copyright owner, in the case where the works
listed in the Notice share a common copyright owner and the records of
the Copyright Office do not include an address at which notice
[[Page 31239]]
can be served on any of the copyright owners for the subject works. The
Office is maintaining these distinctions for the paper filings at this
time because it provides more concise information to the public
reviewing the Notices and facilitates the recordkeeping process for the
Office.
The Office has also determined that Notices addressing multiple
nondramatic musical works may be submitted electronically as XML files.
Electronically submitted Notices will be maintained in a database that
can be searched using any of the included fields of information. While
the search capability of the electronically filed Notices will not be
directly available to the public for technical reasons during the
initial rollout of this service, a request may be made to the Licensing
Division for a search of the database during the interim period. As
such, the Office proposes to allow Notices to be filed in the Office in
electronic format regardless of whether the copyright owner of each
designated work is the same, provided that the Notice does not include
a nondramatic musical work when the identity and address of at least
one of its copyright owners may be found in the public record of the
Copyright Office.
As part of the process of accepting electronically filed Notices,
the Office is also proposing to adopt regulations governing payment for
electronically filed Notices in order to provide a means to
authenticate the licensee submitting the Notice (see below) and to
facilitate an efficient implementation of the interim system.
Specifically, the Office is proposing that during the introduction of
the online filing process, parties that wish to use the Office's online
system for electronically filing Notices be required to maintain a
deposit account pursuant to Sec. 201.6(b) of the Copyright Office
regulations for payment of the Notice filing fees set forth in Sec.
201.3(e)(1) of the Office's regulations, an option that can be easily
implemented. See Circular 5: How to Open and Maintain a Copyright
Office Deposit Account at: http://www.copyright.gov/circs/circ05.pdf.
Use of a deposit account will allow the Office to make any necessary
fee payments immediately and it avoids the need to solve the
technological and security issues associated with providing a credit
card payment in this first iteration of the system.
In addition, the Office proposes not to require an electronic
signature during the initial rollout of the filing process, although
the Office anticipates adding an electronic signature requirement in
later versions of the system. Instead, a remitter will have to create
an online account to file the Notice electronically and, as noted
above, provide payment via a Copyright Office deposit account. The
Office is adopting this approach because the online system will be able
to use the deposit account information to reasonably verify and
authenticate the identity of the person submitting and validating
Notices. In addition, the Office will require that the person
submitting the Notices provide contact information and attest to his or
her authority to file Notices on behalf of the subject Licensee.
In order to accommodate a filer of a Notice identifying only one or
a few titles who does not have a deposit account, the Office intends in
the future to upgrade the online filing system to require an electronic
signature and to accept additional payment options, e.g., credit card
payments. At the moment, however, the focus is on offering a mechanism
for filing Notices with large numbers of titles in a manner that can
easily be administered by the Office at this time. The Office is also
reviewing its fee for filing Notices as part of a larger project to
review its fees for registration and services. Any changes to the fees
for filing Notices of Intention to Obtain a Compulsory License will be
addressed in that process. See 77 FR 18742 (March 28, 2012).
III. Additional Amendments
The Office is also taking this opportunity to clarify the extent to
which the Office examines the Notices. First, the Office does not
examine Notices for legal sufficiency. Rather, the determination of
whether a Notice filed in the Office is sufficient as a matter of law
under this section shall, if necessary, be made by a court of competent
jurisdiction. For that reason, a person or entity filing a Notice of
Intention to obtain a Section 115 compulsory license should take care
to comply with all the statutory and regulatory requirements pertaining
to such Notices. However, the Office will notify a prospective licensee
when a Notice was not accompanied by payment of the required fee. Such
a Notice is considered an incomplete submission and the Notice shall be
deemed filed only as of the date the Office has received both the
Notice and the applicable fee.
In addition, the Office is proposing to amend its regulations for
Notices to include a Privacy Act Advisory Statement in Sec. 201.18 in
addition to providing this information on its Web site. The Privacy Act
Advisory Statement fulfills the Office's obligation to notify the
public that Notices with personally identifying information filed with
the Office become public records.
IV. Pilot Program
While the Office is proposing to amend its regulations to accept
electronic filing of the Section 115 Notices of Intent to Obtain a
Compulsory License, it needs to fully test the system before making it
available to the public for actual, valid submissions of Notices. Thus,
members of the public are invited to participate in a Beta test of the
proposed electronic system. Parties wishing to participate in Beta
testing should contact Tracie Coleman in the Licensing Division of the
Copyright Office at 202-707-3600, [email protected]. The Beta testing will
require participants to upload ``test'' Notices to the Beta version of
the electronic system to ensure proper functionality. ``Test'' Notices
uploaded during the Beta testing phase will not require the submission
of a filing fee, and they will not have any legal effect or otherwise
be considered valid for licensing purposes. The Beta testing will be
limited to selected participants until system testing is complete.
V. Conclusion
The Copyright Office hereby seeks comment from the public on the
proposals identified herein concerning Notices of Intention to obtain a
Section 115 compulsory license.
List of Subjects in 37 CFR Part 201
Copyright.
Proposed Regulation
In consideration of the foregoing, the Copyright Office proposes to
amend part 201 of 37 CFR as follows:
PART 201--GENERAL PROVISIONS
1. The authority citation for part 201 continues to read as
follows:
Authority: 17 U.S.C. 702.
Sec. 201.4 [Amended]
2. Amend Sec. 201.4(a)(1)(iii) by removing ``Original, signed
notices'' at the beginning of the paragraph and adding ``Notices'' in
its place.
3. Amend Sec. 201.18 as follows:
a. By revising paragraph (a)(4);
b. By adding a new paragraph (e)(5);
c. By redesignating paragraph (g) as new paragraph (h);
d. By adding a new paragraph (g);
e. By adding a new paragraph (i).
The additions and revisions to Sec. 201.18 read as follows:
[[Page 31240]]
Sec. 201.18 Notice of intention to obtain a compulsory license for
making and distributing phonorecords of nondramatic musical works.
(a) * * *
(4) A Notice of Intention shall be served or filed for nondramatic
musical works embodied, or intended to be embodied, in phonorecords
made under the compulsory license. For purposes of this section and
subject to subparagraphs (ii) and (iii), a Notice filed with the
Copyright Office which lists multiple works shall be considered a
single Notice and fees shall be paid in accordance with the fee
schedule set forth in Sec. 201.3(e)(1) if filed in the Copyright
Office under paragraph (f)(3) of this section. Payment of the
applicable fees for a Notice submitted electronically under this
paragraph shall be made through a deposit account established under
Sec. 201.6(b).
(i) Except as provided for in paragraph (a)(7), a Notice of
Intention served on a copyright owner or agent of a copyright owner may
designate any number of nondramatic musical works provided that that
the information required under paragraphs (d)(1)(i) through (iv) of
this section does not vary and that the copyright owner of each
designated work is the same, or in the case of any work having more
than one copyright owner, that any one of the copyright owners is the
same and is the copyright owner served.
(ii) A Notice of Intention filed in the Copyright Office in paper
form may designate any number of nondramatic musical works provided
that that the information required under paragraphs (d)(1)(i) through
(iv) of this section does not vary, and that the copyright owner of
each designated work (or, in the case of works having more than one
copyright owner, any one of the copyright owners) is the same and the
registration records or other public records of the Copyright Office do
not identify the copyright owner(s) of such work(s) and include an
address for any such owner(s) at which notice can be served. For
purposes of this subparagraph, in the case of works having more than
one copyright owner, a single Notice must identify an actual person or
entity as the common copyright owner; the common copyright owner may
not be identified as ``unknown.'' However, a single Notice may include
multiple works for which no copyright owners can be identified for any
of the listed works.
(iii) A Notice of Intention filed in the Copyright Office in
electronic format may designate multiple nondramatic musical works,
regardless of whether the copyright owner of each designated work (or,
in the case of any work having more than one copyright owner, any one
of the copyright owners) is the same, provided that the information
required under paragraphs (d)(1)(i) through (iv) of this section does
not vary, and that for any designated work, the records of the
Copyright Office do not include an address at which notice can be
served.
* * * * *
(e) * * *
(5) If the Notice is filed in the Office electronically, the person
or entity intending to obtain the compulsory license or a duly
authorized agent of such person or entity shall, rather than signing
the Notice, attest that he or she has the appropriate authority of the
licensee, including any related entities listed, if applicable, to
submit the electronically filed Notice on behalf of the licensee.
* * * * *
(g) Filing date and legal sufficiency of Notices. The Copyright
Office will notify a prospective licensee when a Notice was not
accompanied by payment of the required fee. Notices shall be deemed
filed as of the date the Office receives both the Notice and the fee,
if applicable. If the prospective licensee fails to remit the required
fee, the Notice will be deemed not to have been filed with the Office.
However, the Copyright Office does not review Notices for legal
sufficiency or interpret the content of any Notice filed with the
Copyright Office under this section. Furthermore, the Copyright Office
does not screen Notices for errors or discrepancies and it does not
generally correspond with a prospective licensee about the sufficiency
of a Notice. If any issue (other than an issue related to fees) arises
as to whether a Notice filed in the Copyright Office is sufficient as a
matter of law under this section, that issue shall be determined not by
the Copyright Office, but shall be subject to determination by a court
of competent jurisdiction. Prospective licensees are therefore
cautioned to review and scrutinize Notices to assure their legal
sufficiency before filing them in the Copyright Office.
(h) Harmless errors. Harmless errors in a Notice that do not
materially affect the adequacy of the information required to serve the
purposes of section 115(b)(1) of title 17 of the United States Code,
shall not render the Notice invalid.
(i) Privacy Act Advisory Statement. The authority for receiving the
personally identifying information included within a Notice of
Intention to obtain a compulsory license is found in 17 U.S.C. 115 and
Sec. 201.18. Personally identifying information is any personal
information that can be used to identify or trace an individual, such
as name, address or telephone numbers. Furnishing the information set
forth in Sec. 201.18 is voluntary. However, if the information is not
furnished, it may affect the sufficiency of Notice of Intention to
obtain a compulsory license and may not entitle the prospective
licensee to the benefits available under 17 U.S.C. 115. The principal
uses of the requested information are the establishment and maintenance
of a public record of the Notices of Intention to obtain a compulsory
license received in the Licensing Division of the Copyright Office.
Other routine uses include public inspection and copying, preparation
of public indexes, preparation of public catalogs of copyright records
including online catalogs, and preparation of search reports upon
request.
Dated: May 18, 2012
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2012-12652 Filed 5-24-12; 8:45 am]
BILLING CODE 1410-33-P