[Federal Register Volume 77, Number 230 (Thursday, November 29, 2012)]
[Rules and Regulations]
[Pages 71101-71104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-28906]
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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: Final rule.
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SUMMARY: The Copyright Office is amending 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
notices. 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 amending its regulations
to clarify the rules for filing physical Notices of Intention, to
clarify that it does not examine Notices of Intention filed with the
Office for legal sufficiency, and to include a Privacy Act Advisory
Statement.
DATES: Effective January 14, 2013.
FOR FURTHER INFORMATION CONTACT: Tanya Sandros, Deputy General Counsel,
Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024. Telephone:
(202) 707-8380. Telefax: (202) 707-8366. All prior Federal Register
notices and comments in this docket are available at: http://www.copyright.gov/laws/rulemaking.html.
SUPPLEMENTARY INFORMATION:
Background
Section 115 of the Copyright Act 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
[[Page 71102]]
registration or other public records of the Copyright Office
(``Copyright Office'' or ``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 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. However, 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 amending its
regulations in Sec. 201.18 by providing for use of an online system
for submission of Notices covering multiple nondramatic musical works.
In its Notice of Proposed Rulemaking published in May 2012, the
Copyright Office proposed a number of changes to the regulations
governing the filing of Section 115 Notices. 77 FR 31237 (May 25,
2012). First, the Office proposed to clarify its rules for submission
of Notices in paper form that contain multiple titles of nondramatic
musical works. The proposal noted that, while in practice the Office
does accept and process Notices with multiple titles in the case where
no copyright owner of any of the works can be identified, the
regulations do not specifically contemplate this situation. Thus, the
Office proposed 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 can be served on any of the copyright owners for the subject
works. The Office proposed to maintain these distinctions for the paper
filings at this time because they provide more concise information to
the public reviewing the Notices and facilitates the recordkeeping
process for the Office.
The Office also proposed to amend the regulations so that Notices
addressing multiple nondramatic musical works may be submitted
electronically as XML files, 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. Fees for such electronic Notices, the Office
proposed, would have to be paid through a Copyright Office deposit
account (pursuant to Sec. 201.6(b) of the Copyright Office
regulations), at least during the introductory period of the online
filing process. 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.
Further to the question of the processing of electronic Section 115
Notices, the Copyright Office proposed not to require an electronic
signature during the initial rollout of the filing process, though it
did note plans to add an electronic signature requirement in later
versions of the system. Under the initial rollout, because the fee for
Notice must be paid through a deposit account, 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.
The Copyright Office, in its May 25, 2012 notice of proposed
rulemaking also proposed two additional amendments. The first of these
would clarify that the Office does not examine Notices for legal
sufficiency, would encourage filers to take care to comply with all the
statutory and regulatory requirements pertaining to such Notices, and
would note that the Office will notify a prospective licensee when a
Notice is not accompanied by payment of the required fee. The second
additional amendment would add a Privacy Act Advisory Statement in
Sec. 201.18, which would fulfill the Office's obligation to notify the
public that Notices with personally identifying information filed with
the Office become public records.
Comments
The Office received two comments in response to its notice of
proposed rulemaking. One, from Attorney Chris Garvey, supported the
proposal to permit the electronic submission of section 115 Notices.
The other, from Public Knowledge (``PK''), also supported the
electronic filing proposal, along with making further suggestions. PK
proposed that electronically filed
[[Page 71103]]
Notices should be permitted for single nondramatic musical works, and
that the Office should ``hasten to build the capacity to authenticate
licensees and receive payment information without deposit accounts.''
This latter measure, PK maintained, would result in long-term reduced
transaction costs. PK also suggested that the Office ``implement a
searchable, electronic Notice database for public use'' in order to
minimize transaction costs between copyright owners and licensees, and
avoid the hourly fee that the Copyright Office charges for searches of
non-public-facing records.
Discussion
The Office is in agreement with PK in its goal of further improving
the functionality of the Office's electronic system ``to simplify the
Section 115 process for licensees, copyright owners, and the Office
itself.'' The Office believes that the amendments detailed above are an
interim step towardsmeeting this goal. The Office also notes that of
the three PK proposals, one is already encompassed in the amendments
and the other two will be instituted as part of the upgrades to the
Office's technical infrastructure.
Regarding the ability of a person to electronically file a Notice
for a single nondramatic musical work, the text of the amendments to
Sec. 201.18(a)(4) states that such a Notice ``may designate multiple
nondramatic musical works.'' The use of the word ``may'' indicates that
multiple works need not be designated, and that an electronic Notice
may be filed for a single work as well. However, a person who files an
electronic Section 115 Notice during this initial rollout phase must be
enrolled in the Office's deposit account program. 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 such as 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.
Regarding PK's desire for a public database of Section 115 Notices,
the Office acknowledges that while the search capability of the
electronically filed Notices will not be directly available to the
public for technical reasons, this will only be the case during the
initial rollout of the service, and that future upgrades to the system
will include a searchable database.
This Final Rule makes one change to the proposed amendments not
suggested by the commenters. In new Sec. 201.18(a)(4)(iii), the phrase
``in electronic format'' in the first sentence is replaced with
``through its electronic filing system.'' This change merely clarifies
the subject of the subsection.
Pilot Program
While the Office is amending 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.
Testing is expected to be completed by the time the rule becomes
effective.
List of Subjects in 37 CFR Part 201
Copyright, General provisions.
Final Regulations
In consideration of the foregoing, the Copyright Office amends 37
CFR part 201 as follows:
PART 201--GENERAL PROVISIONS
0
1. The authority citation for part 201 continues to read as follows:
Authority: 17 U.S.C. 702.
0
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.
0
3. Amend Sec. 201.18 as follows:
0
a. By revising paragraph (a)(4);
0
b. By adding paragraph (e)(5);
0
c. By redesignating paragraph (g) paragraph (h);
0
d. By adding a new paragraph (g); and
0
e. By adding paragraph (i).
The additions and revisions read as follows:
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 through
its electronic filing system 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
[[Page 71104]]
(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 a determination of legal
sufficiency 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.
* * * * *
(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: September 21, 2012.
Maria A. Pallante,
Register of Copyrights.
James H. Billington,
The Librarian of Congress.
[FR Doc. 2012-28906 Filed 11-28-12; 8:45 am]
BILLING CODE 1410-30-P