[Federal Register Volume 82, Number 40 (Thursday, March 2, 2017)]
[Proposed Rules]
[Pages 12326-12328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-03907]


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LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Part 201

[Docket No. 2017-4]


Disruption of Copyright Office Electronic Systems

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Copyright Office is proposing to amend its 
regulations governing delays in the receipt of material caused by the 
disruption of postal or other transportation or communication services. 
As proposed, the amended rule would, for the first time, specifically 
address the effect of a disruption or suspension of any Copyright 
Office electronic system on the Office's receipt of applications, fees, 
deposits, or other materials, and the assignment of a constructive date 
of receipt to such materials. The proposed rule would also make various 
revisions to the existing portions of the rule for usability and 
readability. In addition, the proposed rule would specify how the 
Office will assign effective dates of receipt when a specific 
submission is lost in the absence of a declaration of disruption, as 
might occur during the security screening procedures used for mail that 
is delivered to the Office.

DATES: Written comments must be received no later than 11:59 p.m. 
Eastern Time on April 3, 2017.

ADDRESSES: For reasons of government efficiency, the Copyright Office 
is using the regulations.gov system for the submission and posting of 
public comments in this proceeding. All comments are therefore to be 
submitted electronically through regulations.gov. Specific instructions 
for submitting comments are available on the Copyright Office Web site 
at https://copyright.gov/rulemaking/eoutages. If electronic submission 
of comments is not feasible due to lack of access to a computer and/or 
the internet, please contact the Office using the contact information 
below for special instructions.

FOR FURTHER INFORMATION CONTACT: Anna Chauvet, Assistant General 
Counsel, by email at [email protected], or by telephone at 202-707-8350.

SUPPLEMENTARY INFORMATION: Section 709 of the Copyright Act (title 17, 
United States Code) addresses the situation where the ``general 
disruption or suspension of postal or other transportation or 
communications services'' prevents the timely receipt by the Office of 
``a deposit, application, fee, or any other material.'' In such 
situations, and ``on the basis of such evidence as the Register may by 
regulation require,'' the Register of Copyrights may deem the receipt 
of such material to be timely, so long as it is actually received 
``within one month after the date on which the Register determines that 
the disruption or suspension of such services has terminated.'' 17 
U.S.C. 709. In addition, section 702 of the Copyright Act authorizes 
the Register to ``establish regulations not inconsistent with law for 
the administration of the functions and duties made the responsibility 
of the Register under this title.'' 17 U.S.C. 702.
    The Copyright Office's regulations implementing section 709 can be 
found in 37 CFR 201.8. When the U.S. Copyright Office first promulgated 
these regulations, many of the Office's current electronic systems did 
not exist, and the regulations were not amended to specifically address 
outages of such systems. In 2015, the Office's online system used to 
register initial copyright claims was disrupted for over a week due to 
an equipment failure, highlighting the need for the Office to update 
its regulations to address the effect of a disruption or suspension of 
any Copyright Office electronic system on the Office's receipt of 
applications, fees, deposits, or any other materials.
    Assigning a date of receipt based on the date materials would have 
been received but for the disruption of a Copyright Office electronic 
system is important in a number of contexts. For example, thousands of 
copyright claims are filed each year using the Office's electronic 
filing system, and the effective date of registration of a copyright is 
the date the application, fees, and deposit are received by the 
Copyright Office. 17 U.S.C. 410(d). That date can affect the copyright 
owner's rights and remedies, such as eligibility for statutory damages 
and attorney's fees. See 17 U.S.C. 412 (statutory damages and 
attorney's fees available only for works with effective date of 
registration prior to commencement of infringement or, for published 
works, within three months of first publication of the work). In 
addition, certain filings may be submitted to the Office only in 
electronic form. See 37 CFR 201.38 (online service providers must 
designate an agent to receive notifications of claimed copyright 
infringement through the Copyright Office's Web site).
    The proposed rule accordingly makes several updates to 37 CFR 201.8 
to account for electronic outages. Among other things, the proposed 
rule allows the Register to assign, as the date of receipt, the date on 
which she determines the material would have been received but for the 
disruption or suspension of the electronic system. Ordinarily, when a 
person submits materials through a Copyright Office electronic system, 
those materials are received in the Copyright Office on the date the 
submission was made. In cases where a person attempts to submit 
materials, but is unable to do so because of a disruption or suspension 
of a Copyright Office electronic system, the proposed rule will allow 
the Register to use the date that the attempt was made as the date of 
receipt. In cases where it is unclear when the attempt was made, the 
proposed rule provides the Register with discretion to determine the 
effective date of receipt on a case-by-case basis.
    In addition, the proposed rule makes several changes to update the 
rule to account for more recent practices, and improve the usability 
and readability of the regulation. For instance, the proposed rule 
comprehensively updates paragraph (c) of section 201.8, which specifies 
the deadline for requesting an adjustment of the date of receipt in 
cases where a person attempted to submit material to the Office but was 
unable to do so due to the suspension or disruption of a Copyright 
Office electronic system. In the past, most materials were submitted to 
the Office on paper. Permitting the submission of requests prior to the 
issuance of the certificate of registration or recordation would have 
imposed unacceptable burdens on the Office due to difficulties in 
locating the pending applications or submissions to which the requests 
pertained. Now that the Office has implemented electronic systems, it 
is easier to make date adjustments, such as correcting the effective 
date of registration or date of recordation, while the application or 
submission is still pending. Accordingly, the Office proposes that 
persons seeking to adjust the date of receipt of any material that 
could not be submitted electronically due to a disruption or suspension 
of an Office electronic system, should be permitted to submit a request 
up to one year after the date on which the

[[Page 12327]]

disruption or suspension has terminated under section 201.8(a).
    Finally, the proposed rule adds sections 201.8(b)(2) and (c)(2), 
which address a related issue. On occasion, a person may deliver or 
attempt to deliver material to the Office, but the Office may have no 
record of having received such material or may have lost or misplaced 
that material after it was received. Although such situations are rare, 
they do occur occasionally as mail delivered to the Copyright Office 
must go through extensive security screening. If the person provides 
satisfactory evidence that he or she sent that material to the Office, 
the proposed rule would allow the Register to assign, as the date of 
receipt, the date on which the material would have been received. Such 
a request must be made no later than one year after the person 
delivered or attempted to deliver the application, fee, deposit, or 
other material to the Copyright Office. As a technical matter, these 
provisions do not implement section 709, which pertains to a general 
disruption of postal or other services; rather, the Office is 
implementing these provisions as an exercise of its general regulatory 
authority under section 702 of the Copyright Act.

List of Subjects in 37 CFR Part 201

    Copyright.

Proposed Regulations

    For the reasons set forth in the preamble, the Copyright Office 
proposes amending 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.


Sec.  201.8   [Amended]

0
2. Amend Sec.  201.8 as follows:
0
a. Revise paragraphs (a), (b) and (c);
0
b. In paragraph (d), add ``Return of certificate.'' before ``In 
cases'', remove ``in which'' and add in its place ``where'', and add 
``under paragraph (b)'' after ``along with the request''.
0
c. Revise paragraph (e) introductory text.
0
d. In paragraph (e)(1), add a comma after ``Priority Mail''.
0
e. In paragraph (e)(2), add a semicolon after ``Copyright Office''.
0
f. In paragraph (e)(2)(ii), remove ``2'' and add in its place ``two''.
0
g. Revise paragraphs (e)(3) and (e)(4);
0
h. Revise paragraph (f) introductory text.
0
i. In paragraph (f)(4), remove the period at the end of the sentence 
and replace it with a semicolon.
0
j. Add paragraph (f)(5).
0
k. Remove paragraph (g).
0
l. Add authority citation to the end of the section.
    The revisions and additions read as follows:


Sec.  201.8  Disruption of postal or other transportation or 
communication services.

    (a) Declaration of disruption. For purposes of 17 U.S.C. 709, when 
the Register has determined that there is or has been a general 
disruption or suspension of postal or other transportation or 
communications services, including a disruption or suspension of a 
Copyright Office electronic system, that has delayed the receipt by the 
Copyright Office of applications, fees, deposits, or any other 
materials, the Register shall publish an announcement of that 
determination, stating the date on which the disruption or suspension 
commenced. The announcement may, if appropriate, limit the means of 
delivery that are subject to relief pursuant to section 709. Following 
the cessation of the disruption or suspension of services, the Register 
shall publish an announcement stating the date on which the disruption 
or suspension has terminated, and may provide specific instructions on 
how to make a request under paragraph (b)(1).
    (b) Request for earlier filing date due to disruption. (1) When the 
Register has declared a disruption. When the Register has made a 
declaration of disruption under paragraph (a) of this section, any 
person who, in compliance with any instructions provided by the 
Register, provides satisfactory evidence as described in paragraph (e) 
of this section that he or she attempted to deliver an application, 
fee, deposit, or other material to the Copyright Office, but that 
receipt by the Copyright Office was delayed due to a general disruption 
or suspension of postal or other transportation or communications 
services announced under paragraph (a), shall be assigned, as the date 
of receipt of the application, fee, deposit, or other material, the 
date on which the Register determines the material would have been 
received but for the disruption or suspension of services, so long as 
the application, fee, deposit, or other material was actually received 
in the Copyright Office within one month after the date the Register 
identifies pursuant to paragraph (a) of this section that disruption or 
suspension of services has terminated. Such requests should be mailed 
to the address specified in Sec.  201.1(c)(1), or through any other 
delivery method the Register specifies in a published announcement 
under paragraph (a) of this section.
    (2) With respect to disruption affecting specific submission. In 
the absence of a declaration of disruption under paragraph (a) of this 
section, any person who provides satisfactory evidence as described in 
paragraph (e) of this section that he or she delivered or attempted to 
deliver an application, fee, deposit, or other material to the 
Copyright Office, but that the Office did not receive that material or 
that it was lost or misplaced by the Office after its delivery to the 
Office, shall be assigned, as the date of receipt, the date that the 
Register determines that the material was received or would have been 
received. Such requests may be mailed to the address specified in Sec.  
201.1(c)(1), or through any other delivery method specified by the 
Copyright Office.
    (c) Timing. (1) A request under paragraph (b)(1) of this section 
shall be made no earlier than the date on which the Register publishes 
the announcement under paragraph (a) declaring that the disruption or 
suspension has terminated, and no later than one year after the 
publication of that announcement.
    (2) A request under paragraph (b)(2) of this section shall be made 
no later than one year after the person delivered or attempted to 
deliver the application, fee, deposit, or other material to the 
Copyright Office.
* * * * *
    (e) Satisfactory evidence. In all cases the Register shall have 
discretion in determining whether materials submitted with a request 
under paragraph (b) of this section constitute satisfactory evidence. 
For purposes of paragraph (b) of this section, satisfactory evidence 
may include:
* * * * *
    (3) A statement under penalty of perjury, pursuant to 28 U.S.C. 
1746, from a person with actual knowledge of the facts relating to the 
attempt to deliver the material to the Copyright Office, setting forth 
with particularity facts which satisfy the Register that in the absence 
of the general disruption or suspension of postal or other 
transportation or communications services, including a disruption or 
suspension of a Copyright Office electronic system, or but for the 
misdelivery, misplacement, or loss of materials sent to the Copyright 
Office, the material would have been received by the Copyright Office 
by a particular date; or
    (4) Other documentary evidence which the Register deems equivalent 
to the evidence set forth in paragraphs (e)(1) and (2) of this section.

[[Page 12328]]

    (f) Presumption of receipt. For purposes of paragraph (b) of this 
section, the Register shall presume that but for the general disruption 
or suspension of postal or other transportation or communications 
services, including a disruption or suspension of a Copyright Office 
electronic system, or but for the misdelivery, misplacement, or loss of 
materials sent to the Copyright Office;:
* * * * *
    (5) Materials submitted or attempted to be submitted through a 
Copyright Office electronic system would have been received in the 
Copyright Office on the date the attempt was made. If it is unclear 
when an attempt was made, the Register will determine the effective 
date of receipt on a case-by-case basis.


(17 U.S.C. 702, 709)

    Dated: February 23, 2017.
Sarang V. Damle,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2017-03907 Filed 3-1-17; 8:45 am]
 BILLING CODE 1410-30-P