[Federal Register Volume 82, Number 96 (Friday, May 19, 2017)]
[Rules and Regulations]
[Pages 22886-22888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-10218]


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LIBRARY OF CONGRESS

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: Final rule.

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SUMMARY: The U.S. Copyright Office is amending its regulations 
governing delays in the receipt of material caused by the disruption of 
postal or other transportation or communication services. The 
amendments, 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 amendments also make various revisions to the existing 
portions of the rule for usability and readability. In addition, the 
amendments specify how the Office will assign effective dates of 
receipt when, in the absence of a declaration of a general disruption, 
the Office does not receive, loses, or misplaces materials that were 
physically delivered or attempted to be physically delivered to the 
Office.

DATES: Effective June 19, 2017.

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 U.S. 
Copyright Office (``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.

[[Page 22887]]

    The Office's regulations implementing section 709 can be found in 
37 CFR 201.8. When the 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 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.
    On March 2, 2017, the Office published a Notice of Proposed 
Rulemaking (``NPRM'') setting forth proposed regulatory amendments 
designed to close this gap in the Office's regulations. 82 FR 12326. 
The proposed amendments addressed 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. 82 FR 
12326. The Office received six comments in response to the NPRM. None 
of the commenters opposed or proposed amendments to the proposed rule.
    As explained in the NPRM, 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 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 Office's amendments accordingly make several updates to 37 CFR 
201.8 to account for electronic outages. Among other things, the 
amendments allow 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 an Office electronic system, 
those materials are received in the 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 amendments 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 amendments provide 
the Register with discretion to determine the effective date of receipt 
on a case-by-case basis.
    In addition, the amendments make several other changes to update 
the rule to account for more recent practices, and improve the 
usability and readability of the regulation. For instance, the 
amendments comprehensively update paragraph (c) of Sec.  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 declared suspension or 
disruption of postal or other transportation or communications 
services. Under the previous rule, an applicant could only submit such 
a request after the issuance of a certificate of registration or 
recordation. That is because, in the past, most materials were 
submitted to the Office on paper. Permitting the submission of requests 
prior to the issuance of the certificate would have imposed 
unacceptable burdens on the Office, primarily due to difficulties in 
locating the pending paper 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's 
amendments allow persons seeking to adjust the date of receipt of any 
material that could not be submitted electronically due to a disruption 
or suspension of a Copyright Office electronic system, to submit a 
request on the date the Register publishes the announcement declaring 
that the disruption or suspension has terminated under Sec.  201.8(a), 
up to one year after the date on which the disruption or suspension has 
terminated under Sec.  201.8(a).
    Finally, the amendments add Sec.  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 Office must go through 
extensive security screening.\1\ If the person provides satisfactory 
evidence that he or she physically delivered or attempted to physically 
deliver that material to the Office, the amendment allows 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 physically delivered or attempted to physically 
deliver the application, fee, deposit, or other material to the Office.
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    \1\ As the NPRM thus made clear, sections 201.8(b)(2) and (c)(2) 
are meant to address situations where the Office does not receive, 
loses, or misplaces materials that were physically delivered or 
attempted to be physically delivered to the Office. The rule is not 
intended to address short-term or routine outages of electronic 
systems that may occur in the absence of a declaration of a general 
disruption under section 201.8(a). The language of the final rule 
clarifies this point for the avoidance of any doubt.
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    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.

Final Regulations

    For the reasons set forth in the preamble, 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. Section 201.8 is amended by revising paragraphs (a) through (f) 
introductory text, (f)(4), by adding paragraph (f)(5), and by removing 
paragraph (g). The revisions and addition 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

[[Page 22888]]

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) of this section.
    (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 physically delivered or 
attempted to physically 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) of this section 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 physically delivered or 
attempted to physically deliver the application, fee, deposit, or other 
material to the Copyright Office.
    (d) Return of certificate. In cases where a certificate of 
registration or a certificate of recordation has already been issued, 
the original certificate must be returned to the Copyright Office along 
with the request under paragraph (b) of this section.
    (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:
    (1) A receipt from the United States Postal Service indicating the 
date on which the United States Postal Service received material for 
delivery to the Copyright Office by means of first class mail, Priority 
Mail, or Express Mail;
    (2) A receipt from a delivery service such as, or comparable to, 
United Parcel Service, Federal Express, or Airborne Express, indicating 
the date on which the delivery service received material for delivery 
to the Copyright Office; and
    (i) The date on which delivery was to be made to the Copyright 
Office, or
    (ii) The period of time (e.g., overnight, or two days) from receipt 
by the delivery service to the date on which delivery was to be made to 
the Copyright Office;
    (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.
    (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:
* * * * *
    (4) Materials deposited with a delivery service such as, or 
comparable to, United Parcel Service, Federal Express, or Airborne 
Express, would have been received in the Copyright Office on the date 
indicated on the receipt from the delivery service;
    (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.

    Dated: May 11, 2017.
Karyn Temple Claggett,
Acting Register of Copyrights and Director of the U.S. Copyright 
Office.

    Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2017-10218 Filed 5-18-17; 8:45 am]
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