[Federal Register: May 4, 1995 (Volume 60, Number 86)]
[Rules and Regulations]
[Page 21983-21984]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 202
[Docket No. 95-4]
Modification of Appeal Procedure
AGENCY: Library of Congress, Copyright Office.
ACTION: Notice of policy decision.
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SUMMARY: The Copyright Office of the Library of Congress issues this
Policy Decision modifying the appeal procedure regarding refusals to
register a copyright claim. Currently, this procedure is specified in
Compendium II of Copyright Office Practices and an applicant whose
claim is rejected is entitled to two reconsiderations, each handled
within the Examining Division. The modified procedure establishes an
interim system with a Board of Appeals to reconsider the second appeal
that is the final agency action.
EFFECTIVE DATE: June 5, 1995.
FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Acting General
Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station,
Washington, D.C. 20024. Telephone: (202) 707-8380. Telefax: (202) 707-
8366.
SUPPLEMENTARY INFORMATION:
I. Background
One of the most significant responsibilities assigned the Copyright
Office by Title 17 of the U.S. Code is the registration of copyright
claims. Currently, the Copyright Office registers slightly more than
600,000 copyright claims annually, and refuses to register a small
percentage of these.
Subsections 410(a) and (b) of the copyright law determine the
parameters of the registration system:
(a) When, after examination, the Register of Copyrights
determines that, in accordance with the provisions of this title,
the material deposited constitutes copyrightable subject matter and
that the other legal and formal requirements of this title have been
met, the Register shall register the claim and issue to the
applicant a certificate of registration under the seal of the
Copyright Office. The certificate shall contain the information
given in the application, together with the number and effective
date of the registration.
(b) In any case in which the Register of Copyrights determines
that, in accordance with the provisions of this title, the material
deposited does not constitute copyrightable subject matter or that
the claim is invalid for any other reason, the Register shall refuse
registration and shall notify the applicant in writing of the
reasons for such refusal.
In administering these provisions, the Copyright Office usually
accepts as true the facts given by the applicant.<SUP>1 The decision to
register or not rests on a determination of whether a prima facie valid
copyright claim has been submitted under the provisions of the
Copyright Act.
\1\Section 108.05 of Compendium II of Copyright Office Practices
provides: ``Factual determinations. In connection with its examining
and related activities, the Copyright Office does not ordinarily
make findings of fact with respect to publication or any other thing
done outside the Copyright Office.'' This practice is qualified by
section 108.05(b) providing: ``Administrative notice. The Copyright
Office may take notice of matters of general knowledge. It may use
such knowledge as the basis for questioning applications that appear
to contain or be based upon inaccurate or erroneous information.''
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An applicant may appeal a refusal to register using the appeal
procedure specified in the Compendium of Copyright Office Practices.
Under this practice, an applicant whose claim has been denied
registration is entitled to two reconsideration, each handled within
the Examining Division. Specifically, the procedure provides:
Refusal to register: request for reexamination. When the
Copyright Office has refused a claim as submitted, it notifies the
applicant in writing of the refusal to register. After such
notification, the applicant may set forth in writing his or her
objections to the refusal and request that the Office reconsider its
action. If the claim is refused [[Page 21984]] after
reconsideration, the head of the appropriate Examining Division
section will send the applicant written notification of the reasons
for refusal. The applicant may again request reconsideration. If the
claim is refused again, the Chief of the Examining Division will
notify the applicant in writing of the reasons. The Division Chief's
decision constitutes final agency action.
Section 606.04 Compendium II of Copyright Office Practices.
II. Circumstances Leading to Modification
Although the Office's practice concerning appeals is long-standing,
we have periodically considered modifying it. A number of commentators
have criticized the current practice on the grounds that containment
within the Examining Division leads to an overly closed system. Even
under the existing practice, however, there has been some discussion of
particular cases with the General Counsel or the Register. More
recently, the Library of Congress appointed an Advisory Committee on
Copyright Registration and Deposit, (ACCORD); in their meetings,
members of this Committee criticized the appeals procedure and
suggested that it be changed. Library of Congress, Advisory Committee
on Copyright Registration and Deposit, 31 (1993).
The Copyright Office is committed to improving this procedure and
will be publishing a Notice of Proposed Rulemaking seeking public
comment on legal and administrative issues associated with establishing
a more formal procedure at a later date. Meanwhile, as a first step,
the Office has decided to establish a Board of Appeals within the
Copyright Office as an interim system. By instituting this Board, we
will gain experience in administering an alternative system.
After the Office has some practical experience with the new system,
we will make a detailed proposal and seek public comment. Following
review of these comments, the Copyright Office will publish the new
appeal procedure as a regulation. Although we are now adopting as an
interim system the Board of Appeals described below, the precise nature
of the final appeal procedure will not be established until we publish
final rules. Anyone who wishes to suggest specific guidelines for our
consideration before the proposed rulemaking should submit them to the
Board of Appeals, Copyright GC/I&R, P.O. Box 70400, Southwest Station,
Washington, D.C. 20024.
III. Policy Decision
The Copyright Office's appeal procedure set out in Sec. 606.04 of
the Compendium is amended to read as follows:
Appeals of refusal to register: request for reconsideration.
When the Copyright Office has refused to register a claim as
submitted, it notifies the applicant in writing of the refusal to
register. After such notification, the applicant may set forth in
writing his or her objections to the refusal and request that the
Office reconsider its action. The appeal letter should be addressed
to the appropriate section of the Examining Division, Copyright
Office, Washington, D.C. 20559. The first request for
reconsideration must be received in the Copyright Office within 120
days of the date of the Office's first refusal to register, and the
envelope containing the request should be clearly marked: FIRST
APPEAL/EXAMINING DIVISION.
If the claim is refused after reconsideration, the head of the
appropriate section of the Examining Division sends the applicant
written notification of the reasons for refusal. The applicant may
again request reconsideration in writing. This second appeal must be
received in the Copyright Office within 120 days of the date of the
Office's refusal of the first appeal, and be directed to the Board
of Appeals at the following address: Copyright GC/I&R, P.O. Box
70400, Southwest Station, Washington, D.C., 20024. The Board of
Appeals shall consist of the Register of Copyrights, the General
Counsel, and the Chief of the Examining Division, or their
respective designees. The Board shall consider the second appeal and
render a final decision. The designated Chair of the Board of
Appeals will write the applicant setting out the reasons for
acceptance or denial of the claim. The Appeals Board's decision
constitutes final agency action.
Dated: April 27, 1995.
Marybeth Peters,
Register of Copyrights.
Approved by:
James H. Billington,
The Librarian of Congress.