[Federal Register Volume 85, Number 107 (Wednesday, June 3, 2020)]
[Proposed Rules]
[Pages 34150-34155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12038]


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LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Part 201

[Docket No. 2020-10]


Modernizing Recordation of Notices of Termination

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

ACTION: Notice of Proposed Rulemaking; Notification of Inquiry.

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SUMMARY: The United States Copyright Office is proposing to amend 
certain regulations governing the recordation of notices of 
termination. Along with a parallel rulemaking focused on modernizing 
document recordation in conjunction with development of the Office's 
online recordation system, the proposed amendments are intended to 
improve efficiency in the processing of such notices and to provide 
additional guidance to the public in this area. In addition, the Office 
is providing notice of changes to its examination practices for certain 
notices of termination that pertain to multiple grants, and soliciting 
public comment on two additional subjects of inquiry relating to 
notices of termination.

DATES: Written comments must be received no later than 11:59 p.m. 
Eastern Time on July 6, 2020.

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 website 
at https://www.copyright.gov/rulemaking/recordation-modernization. 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: Regan A. Smith, General Counsel, by 
email at [email protected], Kevin R. Amer, Deputy General Counsel, 
by email at [email protected], or Nicholas R. Bartelt, Attorney-
Advisor, by email at [email protected]. Each can be contacted by 
telephone by calling (202) 707-8350.

SUPPLEMENTARY INFORMATION: 

I. Background

    In 2017, the Office initiated a rulemaking to modernize its overall 
recordation process by updating regulations governing the submission of 
documents to the Office for recordation.\1\ This regulatory update was 
initiated in anticipation of launching a fully electronic, online 
recordation system in the future. That system is currently under 
development, and a limited public pilot was launched in April 2020.
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    \1\ See Modernizing Copyright Recordation, 82 FR 52213 (Nov. 13, 
2017).
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    The Office is issuing this separate notice of proposed rulemaking 
(``NPRM'') to seek public comment on proposed updates to its 
regulations governing recordation of notices of termination.\2\ 
Implementing these proposed amendments will update the regulatory 
framework for notices of termination before features permitting 
electronic submission of notices are developed for the online 
recordation system. In addition, this NPRM clarifies Office examination 
practices relating to notices of termination that contain multiple 
grants. Finally, the Office invites public comment on two subjects of 
inquiry: (1) Whether the Office should develop an optional form or 
template to assist remitters in creating and serving notices of 
termination; and (2) whether the Office should consider regulatory 
updates to address concerns about third-party agents failing to 
properly serve and file notices on behalf of authors.\3\
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    \2\ See 37 CFR 201.10.
    \3\ This notice is focused on proposed updates to Office 
practices for recording notices of termination, and is without 
comment upon congressional and public interest in other substantive 
issues concerning the termination statutes. See, e.g., Hearing on 
Mark-up of H.R. 5283 before the H. Comm. on the Judiciary, 115th 
Cong. 45-46 (2018) (statement of Rep. Zoe Lofgren) (expressing 
support for expanding termination rights to legacy recording artists 
who contributed to pre-72 sound recordings); id. at 53 (statement of 
Rep. Sheila Jackson-Lee) (same); Moral Rights, Termination Rights, 
Resale Royalty, and Copyright Term: Hearing before the Subcomm. on 
the Courts, Intellectual Prop., & the internet of the H. Comm. on 
the Judiciary, 113th Cong. 2-4 (2014) (statements of Reps. Coble, 
Conyers, & Goodlatte) (discussing termination issues generally); 
U.S. Copyright Office, Analysis of Gap Grants under the Termination 
Provisions of Title 17 9 (2010) (``Gap Grant Analysis'') 
(highlighting termination issues raised by public commenters outside 
the focus of the gap grant analysis); Public Knowledge, Making Sense 
of the Termination Right: How the System Fails Artists and How to 
Fix It (Dec. 2019).
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A. Current Rules and Practices for Recording Notices of Termination

    In enacting the Copyright Act of 1976, Congress created a process 
for authors to reclaim previously-granted rights in their works by 
terminating grants after a period of years has elapsed. To do so, 
authors, or their heirs or duly authorized agents, must serve a notice 
of

[[Page 34151]]

termination on the grantee not less than two or more than ten years 
before the effective date of termination stated in the notice.\4\ The 
effective date of termination is a date selected by the author within a 
five-year window that is set by statute. For grants executed on or 
after January 1, 1978, the five-year window starts either 35 years from 
the date of execution or, if the grant covers the right of publication, 
40 years from the date of execution or 35 years from the date of 
publication, whichever is earlier.\5\ For grants executed before 
January 1, 1978, the five-year window begins 56 years from the date 
copyright was originally secured.\6\ In addition, ``[a] copy of the 
notice shall be recorded in the Copyright Office before the effective 
date of termination, as a condition to its taking effect,'' and such 
``notice shall comply, in form, content, and manner of service, with 
requirements that the Register of Copyrights shall prescribe by 
regulation.'' \7\ More broadly, section 702 of the Act authorizes the 
Register of Copyrights to ``establish regulations . . . for the 
administration of the functions and duties made the responsibility of 
the Register under [title 17],'' and section 705(a) requires the 
Register to ``ensure that records of . . . recordations . . . are 
maintained, and that indexes of such records are prepared.'' \8\
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    \4\ See 17 U.S.C. 203(a)(4)(A), 304(c)(4)(A).
    \5\ See id. at 203(a)(3).
    \6\ See id. at 304(c)(3).
    \7\ Id. at 203(a)(4), 304(c)(4). These provisions also apply to 
section 304(d)(1), another termination provision, which incorporates 
section 304(c)(4) by reference. Id. at 304(d)(1).
    \8\ Id. at 702, 705(a).
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    In establishing regulations under this authority, the Office has 
long been of the view that the ``required contents of the notice must 
not become unduly burdensome to grantors, authors, and their 
successors,'' who may lack knowledge of certain information, such as 
the applicable dates.\9\ Consistent with that understanding, and to the 
extent permitted by the statute, the Office generally seeks to avoid 
outright rejection of termination notices submitted for recordation on 
grounds of technical noncompliance with Office regulations. Instead, 
where possible, the Office will correspond with remitters to assist 
them in bringing deficient submissions into compliance with the 
relevant regulations--for example, by supplying required information 
omitted from the original submission. This general policy in favor of 
recordation is particularly appropriate in light of the asymmetrical 
consequences associated with the determination of whether or not to 
record a notice.\10\ As the Office's regulations state, recordation is 
``not a determination by the Office of the notice's validity or legal 
effect'' and ``is without prejudice to any party claiming that the 
legal or formal requirements for effectuating termination (including 
the requirements pertaining to service and recordation of the notice of 
termination) have not been met.'' \11\ By contrast, a refusal to record 
can ``permanently invalidate a notice of termination that is otherwise 
legally sound,'' and thereby deprive the copyright owner of the ability 
to reclaim rights in her work.\12\
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    \9\ Termination of Transfers and Licenses Covering Extended 
Renewal Term, 42 FR 45916, 45918 (Sept. 13, 1977) (``[W]e remain 
convinced that the required contents of the notice must not become 
unduly burdensome to grantors, authors, or their successors, and 
must recognize that entirely legitimate reasons may exist for gaps 
in their knowledge or certainty.''); id. at 45917 (``The preparation 
of notice[s] of termination will be occurring at a time far removed 
from the original creation and publication of the work and, in many 
cases, will involve successors of original authors having little, if 
any, knowledge of the details of original creation or 
publication.''); id. at 45918 (recognizing that ``it will commonly 
be the case that the terminating author, or the terminating renewal 
claimant . . . will not have a copy of the grant or ready access to 
a copy'').
    \10\ The Office previously observed that adopting a permissive 
recordation policy is consistent with the statutory purpose of 
allowing authors to exercise their termination rights. See Gap Grant 
Analysis at 3 (citing H.R. Rep. No. 94-1476, at 124 (1976); S. Rep. 
No. 94-473, at 108 (1975)).
    \11\ 37 CFR 201.10(f)(4); see Ray Charles Found. v. Robinson, 
795 F.3d 1109, 1117-18 (9th Cir. 2015) (noting that validity and 
effect of notices can only be determined by a court of law, not the 
Copyright Office).
    \12\ Gap Grant Analysis at ii n.3.
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II. The Proposed Rule

    After a review of the current regulatory framework in light of 
overall modernization efforts, the Office proposes several amendments 
and clarifications to its regulations governing notices of termination. 
The Office intends for these changes to facilitate recordation and 
compliance with regulatory requirements.

A. Timeliness

    First, the Office proposes an amendment to restore its discretion 
to record certain untimely notices if equitable circumstances warrant. 
Until recently, the relevant language said that the Office ``reserves 
the right to refuse recordation of a notice of termination as such if, 
in the judgment of the Copyright Office, such notice is untimely.'' 
\13\ The current interim rule, promulgated in 2017 as part of the 
parallel rulemaking on modernizing document recordation, changed the 
provision to state that the Office ``will'' refuse such notices.\14\ 
The notice announcing the rule did not discuss the basis for that 
change or state whether it was intended to narrow the Office's 
discretion in this area. In any event, the Office now proposes 
replacing ``will'' with ``may'' to account for the possibility that 
recordation may be warranted in certain cases even where the 
information available to the Office indicates that the notice is 
untimely. For example, if the effective date of termination appears to 
be outside the five-year termination window based on the date of 
execution provided, but there is reason to believe that the work may 
have been created at a later date such that the notice could in fact be 
timely based on the Office's treatment of ``gap grants,'' \15\ it may 
be appropriate to record the notice to allow the relevant facts to be 
determined by a court if necessary. The Office believes it is 
appropriate to amend the regulatory language to ensure it has the 
flexibility to excuse untimeliness in cases where doing so would serve 
the interests of justice and be otherwise equitable, to the extent 
permitted by the statute.\16\
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    \13\ See Recordation of Notices of Termination of Transfers and 
Licenses; Clarifications, 74 FR 12554, 12556 (Mar. 25, 2009).
    \14\ 82 FR at 52220.
    \15\ See 37 CFR 201.10(f)(1)(ii)(C) (permitting termination 
under section 203 of a pre-1978 agreement to grant a work created 
after January 1, 1978 ``if [the notice] recites, as the date of 
execution, the date on which the work was created'').
    \16\ By contrast, in cases where a notice of termination is 
received by the Office on or after the effective date of 
termination, the statute itself appears to prohibit the Office from 
recording the notice as a notice of termination. See 17 U.S.C. 
203(a)(4)(A) (``A copy of the notice shall be recorded in the 
Copyright Office before the effective date of termination, as a 
condition to its taking effect.''), 304(c)(4)(A) (same).
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    Second, the Office proposes a technical change to clarify an 
example provided in the regulations to illustrate when a notice may be 
untimely. The current regulations provide several examples of 
situations when a ``notice will be considered untimely.'' The interim 
rule included these examples to illustrate the types of errors that 
could lead to the Office refusing to record a notice on timeliness 
grounds. The examples were not, however, intended to outline the full 
range of situations where a notice would be untimely. One example of 
untimeliness added by the 2017 interim rule is where ``the date of 
recordation is after the effective date of termination.'' \17\ This 
language may cause confusion because the relevant statutory 
provisions--sections 203(a)(4)(A) and 304(c)(4)(A)--provide that ``[a] 
copy of the notice shall be recorded in the Copyright Office before the 
effective date of termination, as a

[[Page 34152]]

condition to its taking effect.'' \18\ To clarify that submitting a 
notice for recordation on the effective date of termination would also 
be untimely under the statutory provisions, the Office proposes 
amending the example to provide that a date of recordation ``on or'' 
after the effective date of termination will be considered untimely.
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    \17\ 37 CFR 201.10(f)(1)(ii)(A) (emphasis added).
    \18\ 17 U.S.C. 203(a)(4)(A), 304(c)(4)(A) (emphasis added).
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B. Harmless Errors

    The Office's regulations include a ``harmless errors'' exception 
providing that defects in a notice that ``do not materially affect the 
adequacy of the information required to serve the purposes of 17 U.S.C. 
203, 304(c), or 304(d), whichever applies, shall not render the notice 
invalid.'' \19\ Case law indicates that this provision may apply to any 
``immaterial'' error in a notice, such as providing incorrect addresses 
or failing to include specific identifying information about each 
work.\20\ The touchstone of whether an error is ``harmless'' is its 
``materiality,'' which ``[is] to be viewed through the prism of the 
information needed to adequately advance the purpose sought by the 
statutory termination provisions themselves''--that is, balancing 
protection of authors' opportunity to reclaim their rights against 
grantees' interest in receiving sufficient notice of how their rights 
will be affected.\21\
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    \19\ 37 CFR 201.10(e)(1).
    \20\ See Horror Inc. v. Miller, 335 F. Supp. 3d 273, 319-20 (D. 
Conn. 2018) (finding incorrect addresses in a notice to be harmless 
error and interpreting the requirement to ``reasonably identify'' 
the work broadly); Siegel v. Warner Bros. Entm't, 658 F. Supp. 2d 
1036, 1091-95 (C.D. Cal. 2009) (finding failure to include 
information about two weeks of comics was harmless error given the 
totality of information provided in the notice, including a ``catch-
all'' clause).
    \21\ Siegel v. Warner Bros. Entm't, 690 F. Supp. 2d 1048, 1052 
(``Siegel II''); see also Mtume v. Sony Music Entm't, 18 Civ. 
6037(ER), 2019 WL 4805925, at *4 (S.D.N.Y. Sept. 30, 2019) (citing 
Siegel II and explaining the competing objectives of the statutory 
termination provisions).
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    In addition to this general ``harmless errors'' provision, the 
regulations list several specific types of errors that are considered 
harmless under the rule, provided ``the errors were made in good faith 
and without any intention to deceive, mislead, or conceal relevant 
information.'' \22\ These include errors in identifying the date of 
registration or registration number, listing the names of the author's 
heirs, or describing the precise relationships between the author and 
his or her heirs.\23\ The regulations also specifically encompass 
errors in ``[t]he date of execution of the grant being terminated and, 
if the grant covered the right of publication of a work, the date of 
publication of the work under the grant.'' \24\
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    \22\ 37 CFR 201.10(e)(2) (``Without prejudice to the general 
rule provided by paragraph (e)(1) of this section, errors made in 
giving the date or registration number referred to in paragraph 
(b)(1)(iii), (b)(2)(iii), or (b)(2)(iv) of this section, or in 
complying with the provisions of paragraph (b)(1)(vii) or 
(b)(2)(vii) of this section, or in describing the precise 
relationships under paragraph (c)(2) or (c)(3) of this section, 
shall not affect the validity of the notice if the errors were made 
in good faith and without any intention to deceive, mislead, or 
conceal relevant information.''); see Johansen v. Sony Music Entm't 
Inc., 19 Civ. 1094, 2020 WL 1529442, at *7 (Mar. 31, 2020) (noting 
that ``the examples recited in Sec.  201.10(e)(2) were not meant to 
define or otherwise set strict parameters on the circumstances where 
the general harmless error rule in Sec.  201.10(e)(1) is 
applicable'').
    \23\ 37 CFR 201.10(e)(2).
    \24\ See id. at 201.10(b)(2)(iii), (e)(2); Mtume, 2019 WL 
4805925, at *4 (finding that although the date of execution provided 
in the notice ``cannot be the date of creation for at least one of 
the works,'' ``this date--to the extent it is incorrect--may be 
harmless error'').
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    In contrast, failing to provide complete date and manner of service 
information (the ``statement of service'') is a violation of Office 
regulations that is not currently subject to the harmless error rule. 
The current regulations mandate that a notice submitted for recordation 
``must be accompanied by a statement setting forth the date on which 
the notice was served and the manner of service, unless such 
information is contained in the notice.'' \25\ This requirement is a 
procedural rule established by the Office for recordation, rather than 
statutorily-mandated component of a valid notice. It is not subject to 
the harmless error rule because that rule only applies to ``errors in a 
notice,'' including omissions of information from the notice,\26\ and 
the statement of service is not necessarily contained in the actual 
notice, as it can be provided separately.
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    \25\ 37 CFR 201.10(f)(1)(i)(B).
    \26\ See id. at 201.10(e)(1). Recently, courts have held that 
the omission of certain information from the notice may be harmless 
in particular circumstances. See Waite v. UMG Recordings, Inc., 19-
cv-1091, 2020 WL 1530794, at *7-8 (Mar. 31, 2020) (finding omission 
of the dates of execution for the relevant grants and listing 
incorrect dates for the agreements governing the grants to be 
harmless errors under the general provision because ``defendant has 
sufficient notice as to which grants and works plaintiffs seek to 
terminate'' and ``possesses the relevant agreements and can discern 
the relevant dates''); Johansen, 2020 WL 1529442, at * 6-7 
(concluding that the general harmless error provision encompasses 
omission of specific dates of execution where ``notices clearly 
identified the publication dates of the sound recordings at issue, 
as well as their authors, their titles, their copyright registration 
numbers and their effective dates of termination,'' such that the 
``notices provide [grantee] with ample information to identify the 
grants'').
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    The Office believes that errors in complying with its regulations 
should be evaluated by the same harmless error standard as errors in 
complying with the statutory requirements: So long as an error does not 
materially affect the adequacy of the notice, it should not render the 
notice invalid.\27\ The Office therefore proposes broadening the 
harmless error rule beyond errors in a notice to also apply to 
remitters' compliance with any Office-promulgated recordation 
requirement for notices. This revision would permit the Office to treat 
missing or incomplete service information the same as errors in a 
notice--that is, as harmless error when a remitter does not know or is 
unable to reasonably determine this information.
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    \27\ In fact, the initial harmless error provision was adopted 
after public commenters proposed it as a guardrail against ``fatal 
slips'' in complying with the Office's regulations governing 
notices. See 42 FR at 45919 (citing comments submitted by the 
Authors League of Am., Inc. and Joint Reply Comments from the 
Authors League, National Music Publishers' Assoc., Inc., Am. Guild 
of Authors and Composers, Columbia Pictures Indus., Inc., MGM, Inc., 
Paramount Pictures Corp., Twentieth Century-Fox Film Corp., United 
Artists Corp., and Warner Bros. Inc.).
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C. Manner of Service

    The current regulations provide that service of a notice of 
termination upon a grantee may be accomplished by personal service or 
by first class mail.\28\ The Office proposes amending its regulations 
to clarify that acceptable manners of service also include delivery by 
courier services (e.g., FedEx, UPS, DHL). In addition, the Office 
proposes permitting service by email, provided the recipient expressly 
consents to service in this manner.\29\ These proposed amendments 
recognize modern, alternative methods of service to increase 
efficiencies for both remitters and grantees. The Office recently took 
similar action to allow remitters to submit notices of termination for 
recordation by the Office ``electronically in the form and manner 
prescribed in instructions on the Office's website.'' \30\
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    \28\ 37 CFR 201.10(d)(1), (f)(1)(i)(B). These methods of service 
remain unchanged since the Office first adopted regulations 
governing notices of termination. See 42 FR at 45920.
    \29\ The Office has adopted a similar approach in service of 
notice of intention to obtain a compulsory license for making and 
distributing phonorecords under 17 U.S.C. 115. See 37 CFR 
201.18(a)(7), (f)(6) (permitting service by electronic transmission 
in certain circumstances, including where a party has consented to 
accept service by email); see also Mechanical and Digital 
Phonorecord Delivery Compulsory License, 79 FR 56190, 56197 (Sept. 
18, 2014).
    \30\ 37 CFR 201.1(c)(2).

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[[Page 34153]]

D. Identification of a Work

    Under the current regulations, remitters must clearly identify the 
title of each work to which the notice of termination applies. 
Providing a registration number is not required, but is encouraged ``if 
possible and practicable.'' \31\ To further encourage remitters to 
identify works in notices by registration number, the Office proposes 
amending the regulations to permit identification of a work by 
providing: (a) The title, (b) the original copyright registration 
number assigned by the Office, or (c) both pieces of information. This 
approach promotes specificity when identifying works while still 
allowing remitters flexibility in method of identification. It is also 
the standard for how works may be identified in documents that are 
recorded under section 205 of the Act.\32\ It should be noted, however, 
that if a work is identified only by registration number in a notice 
and there is an error in the number, the error may materially affect 
the adequacy of the information, which, in turn, may affect the 
validity of the notice. Accordingly, the Office recommends providing 
both the title and registration number where possible.
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    \31\ Id. at 201.10(b)(1)(iii), (2)(iv).
    \32\ See 17 U.S.C. 205(c) (constructive notice of a recorded 
document attaches if, after being indexed by the Office, ``the 
document, or material attached to it, . . . would be revealed by a 
reasonable search under the title or registration number of the 
work''); Copyright Office Fees, 85 FR 9374, 9383-84 (Feb. 19, 2020) 
(adjusting fee structure for recordation of documents, including 
notices of termination, to calculate one ``work'' as the title, 
registration number, or both).
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E. Date of Recordation

    Current regulations set the date of recordation for a notice of 
termination as the date when ``all of the elements of required for 
recordation, including the prescribed fee and, if required, the 
statement of service'' are received by the Office.\33\ This rule 
harmonizes with the Office's method of determining the date of 
recordation for transfers of ownership and other documents pertaining 
to copyright that are recorded under section 205 of the Act.\34\ 
Similarly, registration applications are assigned an effective date of 
registration, which is set by statute as ``day on which an application, 
deposit, and fee . . . have all been received by the Office.'' \35\
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    \33\ 37 CFR 201.10(f)(3).
    \34\ Id. at 201.4(a) (``The date of recordation is when all the 
elements required for recordation, including a proper document, fee, 
and any additional required information, are received in the 
Copyright Office.''). As originally implemented, the Office only 
required the ``proper document'' and fee be received by the Office. 
See 43 FR 771, 772 (Jan. 4, 1978).
    \35\ 17 U.S.C. 410(d).
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    Although the rule linking the date of recordation to the receipt of 
a complete submission has remained essentially unchanged since 
implemented in 1977, the Office has taken a fresh look at this 
requirement and determined that it should be relaxed to mitigate the 
harsh consequences that can result where a submission is missing 
certain required elements. While many types of clerical filing errors 
in notice submissions can be corrected without prejudice to the 
grantee, a change to the date of recordation resulting from the 
correction can have severe repercussions for the grantor. For example, 
if a grantor properly serves a notice on the grantee but fails to 
include a statement of service in the recordation submission to the 
Office, the grantor could correct this oversight by later submitting 
the statement of service. Under current regulations, however, the date 
of recordation would become the date the statement of service was 
received, not the date the Office first received the notice. Where the 
effective date of termination has already passed before the submission 
is corrected, the notice would be untimely because the statute requires 
that notices be recorded before the effective date of termination.\36\ 
In that circumstance, assuming at least two years remained in the 
termination window, the grantor would have to amend the notice by 
selecting an effective date of termination at least two years later, 
and serve and file that amended notice. But if the untimely notice was 
rejected by the Office within the final two years of the five-year 
window, the grantor would be unable to choose a different valid 
effective date and would lose the opportunity to terminate altogether.
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    \36\ See id. at 203(a)(4)(A), 304(c)(4)(A). Similarly, under the 
current rule, a remitter could submit an otherwise timely and 
materially adequate notice for recordation, but with the improper 
fee. If not corrected until after the effective date of termination, 
the submission would be untimely.
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    Given these potentially severe consequences, current Office 
practice permits remitters to address certain non-material errors or 
omissions in notices submitted for recordation by providing information 
via correspondence with the Office, rather than requiring remitters to 
amend, re-serve, and re-file the notice.\37\ For example, a notice 
terminating a grant under section 203 may indicate that the grant 
included the right of publication, but omit the date of publication, in 
which case the Office would correspond to obtain that date to determine 
the applicable five-year window. In such instances, Office practice has 
been to allow remitters to retain their original date of recordation 
after the Office receives sufficient information to determine that the 
notice may be recorded as originally submitted. The Office believes 
that this practice should be extended to other non-material errors, 
including specifically to situations in which the remitter has failed 
to provide the prescribed fee or the statement of service.\38\ The 
Office therefore proposes amending the regulations to set the date of 
recordation as the date when the notice is received by the Office.
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    \37\ Cf. 37 CFR 201.10(e) (providing exceptions for harmless 
errors).
    \38\ The proposed change that date of recordation no longer be 
conditioned upon receipt of the prescribed fee is subject to change 
if the Office experiences administrative hardship from remitters 
withholding fees until requested or otherwise delaying payment in a 
way that affects the Office's receivables.
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    Although this approach would differ from the method of assigning a 
date of recordation for other types of documents, the Office believes 
this distinction is appropriate in light of key differences between the 
recordation of notices of termination and the recordation of other 
documents pertaining to copyright. In the context of termination 
notices, it is a statutory requirement that grantees receive actual 
notice before a copy of the notice is recorded with the Office.\39\ 
Because of this, the availability of the notice in the Office's public 
records is unnecessary to ensure that a grantee has adequate notice of 
the author's intention to terminate. Indeed, the notice could be 
recorded years after the grantee was served so long as it is received 
by the Office before the effective date of termination. In contrast, 
there is no statutory requirement that parties affected by transfers of 
ownership or other documents recorded under section 205 receive actual 
notice.\40\ Therefore, for those types of documents, the constructive 
notice that is imputed from the date of recordation by the Office may 
have greater significance for affected parties than is the case in the 
termination context.\41\
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    \39\ See 17 U.S.C. 203(a)(4)(A), 304(c)(4)(A).
    \40\ See id. at 205.
    \41\ See id. at 205(c).
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III. Examination Practices for Notices Relating to Multiple Grants

    In recent years, the Office began receiving notices of termination 
relating to multiple grants, that is, notices that seek to terminate: 
(a) More than one grant between the same parties (e.g., one grantor 
seeks to terminate multiple, separate grants to the same grantee(s)), 
or (b) more than one grant relating to the same work(s) (e.g., one 
grantor seeks to

[[Page 34154]]

terminate separate grants to multiple grantees for the same work(s)). 
The Office has not previously provided guidance about recording notices 
that pertain to multiple grants. And in some cases, the Office has 
declined to record such notices, requiring that notices pertain to a 
single grant. To promote consistency and dispel confusion about whether 
remitters may record notices pertaining to multiple grants, the Office 
takes this opportunity to clarify its practices.
    After taking a fresh look at the issue, the Office concludes that 
there is nothing in the statute or current regulations barring notices 
covering multiple grants.\42\ Accordingly, notices with multiple grants 
will generally be recorded as a matter of convenience for authors 
seeking to reclaim their rights. The Office, however, will not record 
notices involving multiple grants where there is no overlap of either a 
grantee or a work across the various grants. In other words, a grantor 
may not use one notice to terminate multiple grants where each grant 
involves a different work and different grantee(s). Notices structured 
in this way would likely be administratively burdensome for the Office 
to examine and process because they would effectively merge multiple 
notices into one document. The current fee charged for recording a 
notice of termination is based upon the staff resources required to 
examine and index a single notice. While examination of a notice 
relating to multiple grants may require greater resources than 
examination of a single grant, the Office expects the additional burden 
to typically be limited where the grants contain commonalities either 
as to the grantees or the works. By contrast, recording notices 
containing wholly unrelated multiple grants would likely demand more 
significant additional resources and, consequently, decrease overall 
processing efficiency.
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    \42\ Notably, section 203(b) states that ``[u]pon the effective 
date of termination, all rights under this title that were covered 
by the terminated grants revert . . . .'' The references to the 
``effective date'' in the singular and ``grants'' in the plural 
could be read to implicitly anticipate multiple grants in a single 
notice. But given that the rest of section 203, and all of sections 
304(c) and (d), refer to a ``grant'' in the singular, this one 
pluralization seems far from definitive.
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    Accordingly, at this time, no additional fee will be charged for 
processing notices relating to multiple grants. The Office intends to 
track the volume of notices with multiple grants that are submitted, 
how many grants are included per notice, and how much longer these 
notices take to process, to determine whether processing time has 
increased due to the need to examine and index each grant in separate 
records. Using that information, the Office can reach an informed 
decision about whether or not to adopt any additional fee for notices 
involving multiple grants.

IV. Additional Subjects of Inquiry

    In addition to the foregoing proposed regulatory changes and 
clarification of examination practices, the Office solicits public 
comment on the following additional topics related to notices of 
termination.

A. Sample Form or Template for Notices of Termination

    The Office currently does not provide forms for use in preparing 
and serving notices of termination.\43\ Previously, in a 2002 notice of 
proposed rulemaking, the Office sought public comment on ``whether the 
Office should provide official forms for notices of termination of 
transfers and licenses under sections 203, 304(c) and 304(d), and 
whether the use of such forms should be made mandatory.'' \44\ In the 
notice, the Office cited the potential benefits of facilitating Office 
processing of notices and promoting compliance with statutory and 
regulatory requirements.\45\ No comments were received, and provisions 
relating to forms were not included in the final rule.\46\
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    \43\ See 37 CFR 201.10(a).
    \44\ Notice of Termination, 67 FR 77951, 77953 (Dec. 20, 2002).
    \45\ Id.
    \46\ Notice of Termination, 68 FR 16958, 16959 (Apr. 8, 2003).
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    In light of its IT modernization efforts, the Office again invites 
public comment on whether it would be beneficial for the Office to 
develop an optional sample form or other template for notices of 
termination, such as an online notice builder. The Office also invites 
comment on any specific features that should be included in such an 
option. These comments will be considered in future phases of 
recordation development and may also be used in developing updated 
guidance documents for the public unconnected to IT systems, including 
circulars, the Compendium of U.S. Copyright Office Practices, and 
online instructional materials.

B. Third-Party Agents

    As is true of many types of filings with the Copyright Office, 
authors sometimes entrust third-party agents to create, serve, and file 
notices of termination on their behalf. Although notices filed by 
third-party agents are generally recorded without incident, the Office 
understands that, in some instances, third-party agents have failed to 
comply with the statutory and regulatory requirements for recordation. 
If third-party agents do not timely communicate problems with 
recordation of notices to their clients, authors' termination rights 
may be jeopardized or extinguished altogether, depending on when these 
issues occur and are discovered relative to the five-year termination 
window.
    The Office seeks public comment on whether these concerns could be 
addressed through regulatory updates, and if so, what specific changes 
should be considered. In addressing this issue, commenters should be 
mindful that the Office is generally seeking to make compliance with 
its regulations and practices less onerous and more flexible for 
remitters, and to increase efficiency in the recordation process. 
Commenters should consider whether imposing additional requirements to 
protect against errors or abuses by third-party agents is compatible 
with those goals. Likewise, commenters may consider the effect of any 
proposed change on the ability of authors to engage agents to limit the 
disclosure of personally identifiable information in the public record.

IV. Conclusion

    In furtherance of the Office's modernization efforts, the proposed 
amendments will facilitate recordation of notices of termination by 
easing compliance with requirements established by the Office. The 
Office invites public comment on this proposal and on the subjects of 
inquiry discussed above.

List of Subjects in 37 CFR Part 201

    Copyright, General provisions.

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.  201.10  [Amended]

0
2. Amend Sec.  201.10 as follows:
0
a. In paragraph (b)(1)(iii):
0
i. Remove ``and, if possible and practicable, the original copyright 
registration number;''
0
ii. Add ``or the original copyright registration number, or both, if 
possible and practicable,'' after ``The title'';
0
b. In paragraph (b)(2)(iv):

[[Page 34155]]

0
i. Remove ``and, if possible and practicable, the original copyright 
registration number;''
0
ii. Add ``or the original copyright registration number'' after ``the 
title'';
0
iii. Add ``, or both, if possible and practicable,'' after ``the 
work'';
0
c. In paragraph (d), add ``or by reputable courier service delivered'' 
after ``by first class mail sent'' and add ``, or by means of 
electronic transmission (such as email) if the grantee expressly 
consents to accept service in this manner'' after ``grantee or 
successor in title''.
0
d. In paragraph (e)(1), add ``preparing, serving, or seeking to 
record'' after ``Harmless errors in'' and add ``or that do not 
materially affect, in the Office's discretion, the Office's ability to 
record the notice'' after ``whichever applies,'';
0
e. In paragraph (e)(2), remove ``or registration number'';
0
f. In paragraph (f)(1)(ii)(A), remove ``will'' from the first sentence 
and add in its place ``may'', remove ``will'' from the second sentence 
and add in its place ``may'', and add ``on or'' after ``the date of 
recordation is''; and
0
g. In paragraph (f)(3), remove ``all of the elements required for 
recordation, including the prescribed fee and, if required, the 
statement of service, have been'' and add in its place ``the notice of 
termination is''.

    Dated: June 1, 2020.
Regan A. Smith,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2020-12038 Filed 6-2-20; 8:45 am]
 BILLING CODE 1410-30-P