[Federal Register Volume 86, Number 78 (Monday, April 26, 2021)]
[Proposed Rules]
[Pages 21990-21994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08570]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Parts 201, 203 and 221

[Docket No. 2021-2]


Copyright Alternative in Small-Claims Enforcement (``CASE'') Act 
Regulations: Expedited Registration and FOIA

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Copyright Office is issuing a notice of proposed 
rulemaking regarding a new expedited registration option and a 
conforming amendment to the Office's Freedom of Information Act 
regulations, under the Copyright Alternative in Small-Claims 
Enforcement Act. To qualify for this expedited registration option, the 
work(s) being registered must be the subject of a claim or counterclaim 
before the Copyright Claims Board. The Office invites public comments 
on this proposed rule.

DATES: Written comments must be received no later than 11:59 p.m. 
Eastern Time on May 26, 2021.

ADDRESSES: For reasons of governmental 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 http://copyright.gov/rulemaking/case-act-implementation/expedited-registration. 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: John R. Riley, Assistant General 
Counsel, by email at [email protected], Brad A. Greenberg, Assistant 
General Counsel, by email at [email protected]. Each can be contacted 
by telephone at (202) 707-8350.

SUPPLEMENTARY INFORMATION: 

I. Background

A. Expedited Registration

    On December 27, 2020, the President signed into law the Copyright 
Alternative in Small-Claims Enforcement (``CASE'') Act of 2020.\1\ The 
CASE Act establishes the Copyright Claims Board (``CCB'' or ``Board''), 
a voluntary, alternative forum to federal court for parties to seek 
resolution of copyright disputes that have a low economic value 
(``small copyright claims'').\2\ The creation of the CCB does

[[Page 21991]]

not displace or limit the ability to bring small copyright claims in 
federal court, but rather provides a more accessible alternative 
forum.\3\ The CCB has authority to hear copyright infringement claims, 
claims seeking a declaration of noninfringement, and misrepresentation 
claims under section 512(f) of the Copyright Act, as amended by the 
Digital Millennium Copyright Act (``DMCA'').\4\ Participation in the 
CCB is voluntary for all parties,\5\ and all determinations are non-
precedential.\6\ The Copyright Office (``Office'') is in the process of 
standing up the CCB and last month published a notification of inquiry 
regarding several rulemakings that the Office intends to promulgate and 
for which it invited public comments.\7\ Congress directed the CCB to 
begin operations by December 27, 2021, though the Register may, for 
good cause, extend that deadline by not more than 180 days.\8\
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    \1\ Public Law 116-260, sec. 212, 134 Stat. 1182, 2176 (2020).
    \2\ See, e.g., H.R. Rep. No. 116-252, at 18-20 (2019); S. Rep. 
No. 116-105, at 7-8 (2019). Note, the CASE Act legislative history 
cited is for H.R. 2426 and S. 1273, the CASE Act of 2019, a bill 
nearly identical to the CASE Act of 2020. See H.R. 2426, 116th Cong. 
(2019); S. 1273, 116th Cong. (2019). In developing the CASE Act, 
Congress drew on model legislation in the Office's 2013 policy 
report, Copyright Small Claims, https://www.copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf (``Copyright Small 
Claims''). Congress also incorporated the Office's report and 
supporting materials into the statute's legislative history. H.R. 
Rep. No. 116-252, at 19; S. Rep. No. 116-105, at 2.
    \3\ H.R. Rep. No. 116-252, at 17; S. Rep. No. 116-105, at 2-3, 
9.
    \4\ 17 U.S.C. 1504(c)(1)-(3). The CCB cannot issue injunctive 
relief but can require that an infringing party cease or mitigate 
its infringing activity in the event such party agrees and the 
agreement is reflected in the proceeding's record. Id. at 
1504(e)(2)(A)(i), (e)(2)(B). This provision also applies to parties 
making knowing material misrepresentations under section 512(f). Id. 
at 1504(e)(2)(A)(ii).
    \5\ See id. at 1504(a); H.R. Rep. No. 116-252, at 17, 21; S. 
Rep. No. 116-105, at 3, 11.
    \6\ H.R. Rep. No. 116-252, at 21-22, 33; S. Rep. No. 116-105, at 
14.
    \7\ 86 FR 16156 (Mar. 26, 2021).
    \8\ Public Law 116-260, sec. 212(d), 134 Stat. at 2199.
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    Congress created the CCB to address the challenges of litigating 
copyright cases in federal court, including the significant costs and 
time required. In doing so, it also considered the Copyright Act's 
registration-related prerequisite to filing a federal lawsuit: \9\ 
Copyright owners of U.S. works cannot pursue infringement litigation 
until the Office has issued or refused a copyright registration, except 
in limited circumstances.\10\ The registration requirement enables the 
Copyright Office to compile a public record of copyright claims that 
serves as a valuable resource for potential users of works, ``gives 
courts the benefits of the Register's expertise on issues of 
registrability, and serves judicial economy by narrowing the issues 
that must be litigated.'' \11\ The Supreme Court described the 
statutory registration requirement as ``akin to an administrative 
exhaustion requirement that the owner must satisfy before suing to 
enforce ownership rights.'' \12\ Additionally, the Copyright Act states 
that in most instances, for a copyright owner to qualify for an award 
of attorneys' fees or statutory damages, the infringed work(s) must 
have been registered within three months of publication or, if 
unpublished, before the act of infringement.\13\
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    \9\ Copyright Small Claims 107-09.
    \10\ 17 U.S.C. 411(a) (``no civil action for infringement of the 
copyright in any United States work shall be instituted until 
preregistration or registration of the copyright claim has been made 
in accordance with this title'' or ``where the deposit, application, 
and fee required for registration have been delivered to the 
Copyright Office in proper form and registration has been 
refused''); Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, 
LLC, 139 S. Ct. 881 (2019) (holding that ``registration occurs, and 
a copyright claimant may commence an infringement suit, when the 
Copyright Office registers a copyright''). Note that the 
registration requirement applies only to ``any United States work'' 
and not to foreign works. See 17 U.S.C. 411(a).
    \11\ Brief for the United States as Amicus Curiae Supporting 
Vacatur and Remand at 4, Reed Elsevier, Inc. v. Muchnick, 559 U.S. 
154 (2010) (No. 08-103).
    \12\ Fourth Estate, 139 S. Ct. at 887 (citation omitted).
    \13\ 17 U.S.C. 412.
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    In considering the challenges facing those involved in small 
copyright claims, the Office and Congress recognized both the continued 
value of copyright registration and the practical difficulties smaller-
value copyright owners may have in registering their works. As the 
Office noted in its report, while copyright registration ``helps to 
produce a valuable public record of American creativity as well as 
material information to parties in litigation,'' at times it may also 
act as ``a procedural hurdle for copyright claimants . . . who may not 
be aware of the repercussions of not registering in a timely manner.'' 
\14\ Congress echoed this sentiment, further noting that ``many small 
claimants currently do not register their works because they do not 
expect to be able to enforce their rights in federal court.'' \15\
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    \14\ Copyright Small Claims at 16-17; see H.R. Rep. No. 116-252, 
at 25-26 (same).
    \15\ H.R. Rep. No. 116-252, at 26.
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    The CASE Act addresses these dynamics by allowing a party to file 
an infringement claim with the CCB once ``a completed application, a 
deposit, and the required fee for registration'' have been delivered to 
the Office.\16\ The legislative history characterizes this approach as 
taking ``a more liberal attitude towards the commencement of a 
proceeding while registration of a work is in progress.'' \17\ Thus, 
unlike in federal court, a party does not need to obtain a registration 
prior to filing a claim before the CCB. But before the CCB renders a 
decision in any infringement dispute, the CASE Act mandates that the 
work at issue must be registered by the Office, and the other parties 
in the proceeding must have an opportunity to address the registration 
certificate.\18\ Recognizing that some infringement claims may involve 
works for which a registration application has been submitted, but for 
which the Office has not yet rendered a decision, Congress directed the 
CCB to hold such proceedings in abeyance.\19\ If the Office refuses the 
registration, the CCB action will be dismissed without prejudice; \20\ 
the CCB also may dismiss an action without prejudice if it has been 
held in abeyance for at least one year, upon providing thirty days 
written notice to the parties.\21\ As Congress explained, ``[t]his 
process is intended to strike a balance between still encouraging 
timely registration of works with the promise of a higher damages caps 
[in federal court] with the reality that smaller creators may have 
numerous understandable reasons for not routinely engaging in the 
registration process.'' \22\
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    \16\ 17 U.S.C. 1505(a)(1).
    \17\ H.R. Rep. No. 116-252, at 25.
    \18\ 17 U.S.C. 1505(b)(1).
    \19\ Id. at 1505(b)(2).
    \20\ Id. at 1505(b)(3); see also Copyright Small Claims at 108-
109.
    \21\ 17 U.S.C. 1505(b)(2).
    \22\ H.R. Rep. No. 116-252, at 26.
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    To ensure that the work at issue in a CCB proceeding is registered 
in a timely manner before the CCB issues a determination, the CASE Act 
directs the Office to ``establish regulations allowing the Copyright 
Office to make a decision, on an expedited basis, to issue or deny 
copyright registration for an unregistered work that is at issue before 
the Board.'' \23\ The Office already has a process for expedited 
copyright registration, called ``special handling,'' \24\ which is 
granted under specific circumstances: Pending or prospective 
litigation; customs matters; or contract or publishing deadlines that 
necessitate the expedited issuance of a certificate.\25\ As explained 
below, the Office is not proposing to use the existing special handling 
processes to institute the expedited registration mechanism for a CCB 
matter, although the processes will be somewhat similar. One difference 
will be the level of fees. The special handling fee is not 
insignificant for qualifying applicants and currently is set at $800; 
\26\ the Office has found this to be an inelastic fee, and the fees 
collected are used to help offset

[[Page 21992]]

other registration services.\27\ To help defer the costs of expedited 
registration before the CCB, the Office also needs to charge a fee, but 
the cost cannot be so high as to deter participation.\28\ Accordingly, 
the expedited registration fee for a matter before the CCB will be 
considerably lower than fees for special handling under other 
circumstances.
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    \23\ 17 U.S.C. 1505(d).
    \24\ 37 CFR 201.3(d)(7).
    \25\ U.S. Copyright Office, Compendium of U.S. Copyright Office 
Practices sec. 623.2 (3d ed. 2021).
    \26\ 37 CFR 201.3(d)(7)(i).
    \27\ 83 FR 24054, 24060 (May 24, 2018).
    \28\ We note that the CASE Act states that the costs of filing a 
CCB action ``may not exceed the cost of filing an action in a 
district court of the United States, and shall be fixed in amounts 
that further the goals of the Copyright Claims Board.'' 17 U.S.C. 
1510(c).
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B. Freedom of Information Act

    The CASE Act limits the materials related to a CCB proceeding that 
must be disclosed under the Freedom of Information Act (``FOIA'').\29\ 
The Office is otherwise subject to FOIA, which, subject to certain 
conditions and exceptions, requires agencies to make their records 
available to the public either proactively or in response to a 
request.\30\ The CASE Act limits the CCB documents, materials, and 
other records that must be disclosed under FOIA to ``determinations, 
records, and information'' that are published on the Office's website 
and that relate to a CCB final determination.\31\
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    \29\ Id. at 1506(t)(4).
    \30\ See 5 U.S.C. 552.
    \31\ 17 U.S.C. 1506(t)(4).
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II. Proposed Rule

    Having carefully considered the above issues and its own 
administrative and operational constraints in administering the 
registration system, the Office now issues a proposed rule amending its 
regulations regarding expedited registration for claimants engaged in 
CCB proceedings, as well as a conforming amendment for disclosures 
under FOIA. The Office invites public comment on any aspects of the 
amended rules.

A. Small Claims Expedited Registration

    The Office proposes establishing regulations for small claims 
expedited registration consistent with the statute. First, before a 
claim or counterclaim may be asserted before the CCB, the copyright 
owner must have either been issued a registration certificate for the 
work(s) at issue or submitted a completed registration application, 
deposit, and the required registration fee to the Office. The CCB 
cannot hear a claim or counterclaim related to a work for which the 
registration has been rejected.
    Second, the claimant or counterclaimant must submit its application 
for small claims expedited registration by making a request and paying 
the fee as directed by the CCB. An important difference between the 
small claims expedited registration process and the Office's general 
special handling procedures is that requests for small claims 
expedition will be made to the CCB, and not through the electronic 
registration system (currently known as ``eCO''). Specifically, the 
claimant or counterclaimant who has a pending copyright application 
must indicate that the registration is pending and place the service 
request (``SR'') number issued by the Copyright Office's Office of 
Registration Policy and Practice \32\ (``RPP'') on its claim or 
counterclaim notice. That SR number can be used to identify the work 
pending in RPP's registration application queue. If small claims 
expedited registration request is granted, as discussed further below, 
RPP will be notified and will use the SR number to move the application 
up in the queue. If the proceeding cannot move forward because a 
registration certificate for the work has not been issued, the CCB will 
hold the proceedings in abeyance until a decision is made on the 
application.
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    \32\ The Office of Registration Policy and Practice 
``administers the U.S. copyright registration system and advises the 
Register of Copyrights on questions of registration policy and 
related regulations and interpretations of copyright law.'' 37 CFR 
203.3(e).
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    Third, a claimant or counterclaimant may only request small claims 
expedited registration after it has submitted a completed registration 
application and the respondent has either opted in or has not timely 
opted out. This will also ensure that registration applicants do not 
invoke the CCB to receive special handling treatment at a discounted 
rate when not genuinely intending to pursue their claim through the 
CCB.
    Fourth, the fee for small claims expedited registration must be 
timely made for the required amount. The small claims expedited 
registration fee supplements, and does not substitute for, the 
registration application fee; it is intended to partially offset the 
costs for the Office of accelerating the examination of works before 
the CCB. The CASE Act sets a statutory minimum filing fee for a 
proceeding of $100; the statutory maximum, which includes the initial 
filing fee, may not exceed filing fees in federal district court, which 
currently are set at $402.\33\ Accordingly, the special handling fee of 
$800 would on its own exceed the maximum fee set by Congress, which 
would run counter to the Act's aims to keep the CCB accessible for 
smaller economic actors. On the other hand, a de minimis fee may not be 
appropriate either, as expedited registration will impose real costs on 
the Office that would otherwise need to be offset through 
appropriations. To keep the CCB accessible while helping to offset some 
of the anticipated increased costs of small claims expedited 
registration, the Office has determined that a $50 fee is reasonable. 
The Office thus proposes that applicants seeking small claims expedited 
registration pay a $50 fee for each claim; this fee supplements the 
relevant application fees for the type of application at issue. In line 
with its overall approach to fee-setting, the Office intends to 
periodically reassess the reasonableness of the fee once additional 
data about the operation of this service becomes available.
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    \33\ See 28 U.S.C. 1914(a)-(b), note (2020) (District Court 
Miscellaneous Fee Schedule); see also Admin. Off. of the U.S. 
Courts, District Court Miscellaneous Fee Schedule (Dec. 2020), 
https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule.
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    Fifth, the request for small claims expedited registration must be 
granted before RPP is notified of the request. The bases for denying a 
request are failure to pay the required fee or determination that the 
request would be unduly burdensome. If the request is granted, RPP will 
ordinarily make a decision on the application within ten business days 
of receiving the request. If RPP requires additional correspondence 
with the applicant, this may extend the review timeline.
    Sixth, the Office will continue to examine all copyright 
registration applications under the same standards, regardless of 
whether the application is reviewed under small claims expedited 
registration, special handling, or the general registration process. 
Whether a work is eligible for copyright registration is established by 
the Copyright Act and the Office's regulations, and the CASE Act does 
nothing to change that.\34\
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    \34\ See 17 U.S.C. 102; Feist Publications, Inc., v. Rural 
Telephone Service Co., 499 U.S. 340 (1991); 37 CFR 202.1.
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    The Office proposes to establish this process as an interim rule. 
The CCB is a first-of-its-kind tribunal, and the Office recognizes that 
as it begins to hear cases there may be a need to adjust some 
processes. An interim rule will help maintain flexibility to make 
necessary modifications in response to new evidence or unforeseen 
issues. The learned experiences of the CCB and the parties that come 
before it may lead the Office to revise this rule to better fulfill 
Congress's intent for expedited registration under the CASE Act. This 
proposed rule is intended to establish

[[Page 21993]]

procedures for small claims expedited registration that will facilitate 
access to the CCB while guarding against improper requests. The Office 
invites public comment on these proposed changes.

B. Freedom of Information Act

    The Office also proposes a technical edit to the Office's FOIA 
regulations to reflect the CASE Act's statutory reference to FOIA. The 
edit will add language stating that CCB determinations published on the 
Office's website and related records and information published on that 
website may be disclosed under FOIA. All other materials related to CCB 
proceedings are exempt from disclosure under FOIA.\35\ The Office 
invites public comment on the proposed conforming amendment.
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    \35\ 17 U.S.C. 1506(t)(4).
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List of Subjects

37 CFR Part 201

    Copyright, General provisions.

37 CFR Part 203

    Freedom of information.

37 CFR Part 221

    Claims, Copyright, Registration.

Proposed Regulations

    For reasons stated in the preamble, the Copyright Office proposes 
to amend 37 CFR chapter II 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.  201.3 by:
0
a. Redesignating paragraphs (d)(8) through (17) as paragraphs (d)(9) 
through (18), respectively.
0
b. Adding new paragraph (d)(8).
    The addition reads as follows:


Sec.  201.3  Fees for registration, recordation, and related services, 
special services, and services performed by the Licensing Division.

* * * * *
    (d) * * *

                        Table 1 to Paragraph (d)
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                    Special services                         Fees ($)
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                              * * * * * * *
(8) Small claims expedited registration fee for each                  50
 claim..................................................
 
                              * * * * * * *
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* * * * *

PART 203--FREEDOM OF INFORMATION ACT: POLICIES AND PROCEDURES

0
3. The authority citation for part 203 continues to read as follows:

    Authority:  5 U.S.C. 552.

0
4. Amend Sec.  203.1 by adding a sentence at the end of the section to 
read as follows:


Sec.  203.1  General.

    * * * All information relating to proceedings of the Copyright 
Claims Board under chapter 15 of the Copyright Act is exempt from 
disclosure under FOIA, except for Copyright Claims Board determinations 
published on the Copyright Office website and related records and 
information published on that website.
0
5. Add subchapter B, consisting of part 221, to read as follows:

SUBCHAPTER B--COPYRIGHT CLAIMS BOARD, LIBRARY OF CONGRESS

PART 221--REGISTRATION

Sec.
221.1 Registration requirement.
221.2 Small claims expedited registration.

    Authority: 17 U.S.C. 702, 1510.


Sec.  221.1  Registration requirement.

    (a) A claim or counterclaim alleging infringement of an exclusive 
right in a copyrighted work may not be asserted before the Copyright 
Claims Board unless the legal or beneficial owner of the copyright has 
first delivered a completed application, a deposit, and the required 
fee for registration of the copyright to the Copyright Office and a 
registration certificate has either been issued or has not been 
refused.
    (b) For a work that has not yet been registered, a claimant or 
counterclaimant who has a pending application to register the work must 
indicate on its claim or counterclaim notice that the work is pending 
registration and must include the work's service request (SR) number 
that was assigned to the copyright registration claim. If the 
proceeding cannot continue because of a pending registration, the 
Copyright Claims Board shall hold proceedings in abeyance until the 
claimant or counterclaimant provides the Copyright Claims Board with 
the certificate of registration or the registration number on the 
certificate of registration or certificate preview. The proceeding 
shall be dismissed without prejudice if the Copyright Claims Board is 
notified that the registration application was rejected. If the 
proceeding has been held in abeyance for more than one year, the 
Copyright Claims Board may dismiss the claim or counterclaim without 
prejudice after providing thirty days written notice.


Sec.  221.2  Small claims expedited registration.

    (a) Eligibility. A claimant or counterclaimant alleging 
infringement of an exclusive right in a copyrighted work before the 
Copyright Claims Board is eligible to expedite a copyright registration 
application under this section. This process shall be known as small 
claims expedited registration.
    (b) Initiating small claims expedited registration. The small 
claims expedited registration process can only be initiated after the 
claimant or counterclaimant has both completed an application for 
copyright registration and the respondent has opted in or not timely 
opted out. To initiate the small claims expedited registration process, 
the qualifying claimant or counterclaimant must make a request and pay 
the required fee as directed by the Copyright Claims Board. Parties 
should request small claims expedited registration once the respondent 
has opted in or not timely opted out. Parties must not attempt to 
initiate small claims expedited registration by using the Copyright 
Office's electronic registration system (eCO).
    (c) Fee--(1) Amount. The small claims expedited registration fee 
for each claim

[[Page 21994]]

must be made for the appropriate amount, as prescribed in Sec.  
201.3(c) of this chapter. The fee for small claims expedited 
registration is intended to accelerate the registration process for a 
qualifying Copyright Claims Board claimant or counterclaimant that 
already has a pending registration application; it is in addition to, 
and does not offset, the fee for copyright registration.
    (2) Method of payment. (i) The fee for small claims expedited 
registration must be submitted electronically to the Copyright Claims 
Board and not through the Copyright Office's electronic registration 
system (eCO).
    (ii) A claimant or counterclaimant shall follow instructions on the 
Copyright Office website to make electronic payments with credit or 
debit cards, or directly from their bank accounts by means of automated 
clearing house (ACH) debit transactions. Applicants may not use a 
deposit account to make payments for small claims expedited 
registration.
    (3) No refunds. The small claims expedited registration fee is not 
refundable, unless the small claims expedited registration request is 
denied under paragraph (d) of this section.
    (d) Denied requests. If the applicant failed to pay the required 
fee or if the Copyright Office determines that expedited registration 
under this section would be unduly burdensome, the Office will notify 
the applicant that the request has been denied and that the copyright 
registration claim will be examined on a regular basis.
    (e) Granted requests. If the request for expedited registration 
under this section is granted, the Office will make every attempt to 
examine the application or the document within ten business days after 
notice of the request is delivered by the Copyright Claims Board to the 
Copyright Office's Office of Registration Policy and Practice, although 
the Copyright Office cannot guarantee that all applications or all 
documents will be registered or recorded within that timeframe.
    (f) Identical registration standards. The Copyright Office will 
apply the same practices and procedures set out in the part when 
examining a copyright registration claim, regardless of whether the 
applicant asks for small claims expedited registration.

    Dated: April 20, 2021.
Regan A. Smith,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2021-08570 Filed 4-23-21; 8:45 am]
BILLING CODE 1410-30-P