[Federal Register: October 28, 1997 (Volume 62, Number 208)] [Rules and Regulations] [Page 55736-55740] ----------------------------------------------------------------------- LIBRARY OF CONGRESS Copyright Office 37 CFR Part 201 [Docket No. 97-5A] Copyright Restoration of Works in Accordance With the Uruguay Round Agreements Act; NIE Corrections Procedure AGENCY: Copyright Office, Library of Congress. ACTION: Interim regulations with request for comments. ----------------------------------------------------------------------- SUMMARY: The Copyright Office is issuing interim regulations to govern the filing of Correction Notices of Intent to Enforce a Restored Copyright under section 104A of the copyright law, as amended by the Uruguay Round Agreements Act. The effect of the interim regulation is to establish procedures for the correction of errors in previously filed Notices of Intent to Enforce a Restored Copyright and to provide a suggested format for submitting such information. DATES: This interim regulation is effective October 28, 1997. Comments should be in writing and received on or before November 12, 1997. ADDRESSES: If delivered by hand, an original and ten (10) copies of comments should be delivered to: Library of Congress, Office of the General Counsel, Copyright Office, James Madison Memorial Building, Room LM-403, First and Independence Avenue, SE., Washington, DC 20540. If sent by mail, an original and ten (10) copies of comments should be addressed to: David Carson, General Counsel, Copyright GC/I&R, PO Box 70400, Southwest Station, Washington, DC 20024. FOR FURTHER INFORMATION CONTACT: Charlotte Douglass, Principal Legal Advisor to the General Counsel, Copyright GC/I&R, PO Box 70400, Southwest Station, Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 707-8366. SUPPLEMENTARY INFORMATION: Background On December 8, 1994, President Clinton signed the ``Uruguay Round Agreements Act'' (URAA), Pub. L. 103-465, 108 Stat. 4809. The URAA restored copyright in certain foreign works from any country that, from January 1, 1996, forward, is a member of the Berne Convention for the Protection of Literary and Artistic Works, a member of the World Trade Organization (WTO), or subject to a Presidential Proclamation determining eligibility. 60 FR 7793 (Feb. 9, 1995); Proclamation No. 6780, 60 FR 15845 (Mar. 27, 1995). Nationals of such countries have copyright automatically restored in their works effective on the first date the particular source country becomes a country in any of the above-listed three categories. However, to be restored, works must meet certain other requirements. Such works must: (1) Not be in the public domain in its source country through expiration of the term of protection; (2) Be in the public domain in the United States due to noncompliance with formalities imposed at any time by United States copyright law, lack of subject matter protection in the case of sound recordings fixed before February 15, 1972, or lack of national eligibility; (3) Have at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country; (4) If published, be first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country. Notwithstanding the fact that the work meets the above requirements, any work ever owned or administered by the Alien Property Custodian and in which the restored copyright would be owned by a government or instrumentality thereof, is not a restored work. 17 U.S.C. 104A(a)(2). [[Page 55737]] Although copyright restoration is automatic for eligible works, a copyright owner's enforcement of its copyright against a reliance party is subject to notice to the reliance party and a waiting period. Reliance parties, in general, are persons who obtained copies of the works or were already using the works before the URAA was enacted (Dec. 8, 1994). 17 U.S.C. 104A(h)(4). Specifically, a reliance party is any person who: (A) With respect to a particular work, engages in acts, before the source country of that work becomes an eligible country, which would have violated section 106 if the restored work had been subject to copyright protection, and who, after the source country becomes an eligible country, continues to engage in such acts; (B) Before the source country of a particular work becomes an eligible country, makes or acquires 1 or more copies or phonorecords of that work; or (C) As the result of the sale or other disposition of a derivative work covered under subsection (d)(3), or significant assets of a person described in subparagraph (A) or (B), is a successor, assignee, or licensee of that person. Id. The copyright owner must file with the Copyright Office a Notice of Intent to Enforce (NIE) its restored copyright or must individually serve such notice on a reliance party and must wait a period of twelve months before enforcing a restored copyright against a reliance party. A reliance party may be found liable for infringement beginning twelve months after Federal Register publication of the Notice of Intent to Enforce the copyright in the restored work or twelve months after a notice has been individually served on the reliance party, whichever is earlier. 17 U.S.C. 104A(d)(2). Thus, the reliance party receives a 12 month grace period during which it may use the restored work without paying licensing fees or securing permission for such use from the restored copyright owner. Id., The Uruguay Round Trade Agreements, Text of Agreements, Implementing Bill, Statement of Administrative Action, and Required Supporting Statements, H.R. Doc. No. 316, 103d Cong., 2d Sess. 324 (1994). NIEs filed in the Copyright Office receive the benefit of constructive notice; that is, all persons are deemed to have notice of the NIE upon the Copyright Office's publication in the Federal Register of an NIE for a restored work. Cf. 17 U.S.C. 104A(c). Thus, the Federal Register publication begins the 12-month grace period concerning a particular restored work for all reliance parties, whereas the individually served NIE begins the 12-month period for only those reliance parties served, and any other reliance party with actual knowledge of such service and the contents of the notice. Recording NIEs and publishing in the Federal Register the NIE titles and owners of restored copyright is part of the Copyright Office responsibilities pursuant to the URAA. 17 U.S.C. 104A(e)(1)(B). Regulations have been issued for such filings as well as special regulations for registration of claims to copyright under the URAA. 60 FR 50414 (Sept. 29, 1995). As part of the Office's responsibility regarding NIEs, the Office has proposed rules for recording corrections to NIEs, both those NIEs containing major errors and those containing minor errors. The URAA allows a party who has filed an NIE with the Copyright Office to correct minor errors or omissions by further notice at any time after the original NIE is filed. 17 U.S.C. 104A(e)(1)(A)(iii). The procedures and fees for filing a correction to an NIE are essentially the same as those for filing an original NIE, except that the party making the correction should refer, on the corrected NIE, to the previous NIE's volume and document number in the Copyright Office Documents Records, if known. For purposes of determining the appropriate filing period, the Office will regard NIEs correcting major errors as new NIEs. Such NIEs must, therefore, be filed within the initial two year period of eligibility to be accepted as timely. I. Proposed Rule To Establish Correction Notices of Intent To Enforce On July 30, 1997, the Office proposed regulations to govern the filing of Correction Notices of Intent to Enforce a Restored Copyright (Correction Notices or Correction NIEs). This rule proposed procedures to correct major and minor errors and provided a format which the Office suggested for submitting Correction Notices. The procedures (1) detailed who may file a Correction Notice, (2) distinguished between major and minor error, (3) explained that multiple NIEs could be submitted for the same work where the work had multiple owners and (4) noted that while NIEs could be withdrawn within a short time after filing, the Office will not cancel a recorded NIE. II. Comment The Office received one comment in response to the publication of its proposed rule, from the Motion Picture Association of America (MPAA). This organization pointed out what it considered an inherent ambiguity in the URAA provision for minor errors but not other errors, in that sec. 104A(e)A(ii) of Title 17 permits the correction of minor errors at any time, even after the 24-month filing period, thereby leaving open the consideration of whether and when other errors may be corrected, and what effect such errors may have. One potential effect relates to when infringement remedies may be awarded against reliance parties. Under the URAA, sec. 104A(d)(2), such parties' continued use of a restored copyright after a 12-month period following the publication in the Federal Register of the title and owner of a restored work as listed in an NIE is subject to infringement remedies. The MPAA suggested that the Office provide by regulation that infringement remedies are available only after publication of Correction NIEs. III. Response The Office addresses this comment regarding the ``inherent ambiguity'' of the URAA provision for correction of minor errors by looking to what appears to be Congress' underlying intent--to shield the public from prejudicial errors, i.e., those errors which would impede efforts by members of the public to ascertain the possible restored status of a work while assisting the NIE filer in the creation of an improved and corrected public record where a harmless error had been made. See 17 U.S.C. 104A(e)(3). While the Office has no statutory authority to establish the date on which infringement remedies are available, the distinguishing of major and minor errors facilitates the administration of NIEs where errors in an originally filed NIE may be of such a substantial nature that the initial NIE does not adequately and reasonably identify the restored work. Further, an administrative procedure recognizing the distinction between an error which would not impede the public's locating within Copyright Office records information for a given restored work and an error in an NIE which would prevent the public from being informed of the restored status for a particular work allows for a more reliable and useful public record and may possibly facilitate judicial determination of when adequate notice concerning a restored work occurred. The Office concludes that major errors are those which pertain to the statutorily required information in the Copyright Office NIE filings: name of the copyright owner or rightholder, title of the work (but not the translation, if any) and the written agency relationship. Where the Office determines an error to be major, a Correction NIE must be filed within the two year period of eligibility. NIE filings [[Page 55738]] with the Office are voluntary. In the absence of a timely filing in the Office, the URAA allows a copyright owner of a restored work to serve an individual notice on a reliance party at any time after the date of restoration of the restored copyright to trigger a reliance party's 12- month period to use the restored work within the terms of the statute. 17 U.S.C. 104A(e)(2). Based on the foregoing discussion, these interim regulations are essentially unchanged, except for minor technical amendments. IV. Procedures for Correction Notices of Intent to Enforce A. Who May File a Correction Notice of Intent To Enforce (Correction NIE) Correction NIEs may be filed by or on behalf of the same copyright owner or rightholder who filed the original NIE. The ``same copyright owner'' includes successors in interest. A certification by a third party is not sufficient to authorize a correction of an earlier NIE recorded in the name of another party/ copyright owner, unless that third party is also the authorized agent of the copyright owner in whose name the original NIE was recorded. An authorized agent may file a Correction NIE whether or not that agent filed the original NIE. B. Definition of Major and Minor Error The Copyright Office concludes that major errors, not defined or referenced within the statutory provisions, may be corrected only within the two-year period of eligibility for initially filing NIEs. Minor errors may be corrected at any time under the URAA provisions. (17 U.S.C. 104A(e), as amended). The Office has determined that major errors are errors concerning the following NIE statutory requirements: the name of the copyright owner or rightholder; the title of the work (as opposed to its translation, if any); and a written agency relationship, if applicable. The Office considers these items of information to be basic identifiers crucial to the effectiveness of adequately informing the public of the existence and ownership of a particular work which is subject to a Notice of Intent to Enforce. The title of a work and the identity of the rights owner in the work, including correct information regarding an agent of the rights owner, if an agency relationship existed, must be present in the Copyright Office NIE records in order for the NIE filer to meet the requirements of the statute and to allow the public through a reasonable search to locate the essential information within Office NIE records about a given work restored to copyright under the URAA. Where the original NIE did not adequately identify the owner of the restored work, the title of the restored work or the agency relationship, the Office will refuse to record a Correction NIE that is submitted after the two-year period following a work's restoration to copyright protection. Adequate identification of a restored work means that accurate and sufficient information concerning the three statutorily required items of owner identity, title, and agency relationship, if any, is present in the original NIE. The necessary accuracy and sufficiency of information for the original NIE includes, but is not limited to, completeness of the information, accurate spelling of names and titles, and correct sequencing of wording within names and titles so that a reasonable search of the NIE records will reveal the work in question. The following are examples where original NIEs contain information which would not result in a reasonable search revealing the actual, correct title or owner identity for the restored work: Title in original NIE: Robert Meets the Green Rabbit Again Title in Correction NIE: Here We Go Again--The Green Rabbit and Robert Title in original NIE: Now Are the Times That Try Men's Souls Title in Correction NIE: Trying Times for Mankind Owner in original NIE: Kathy and Lori Film Production, Inc. Owner in Correction NIE: Kathy Lorenzo and Lori Lorenzo Where the two-year period has expired and where there is doubt as to whether an error is major or minor, i.e., whether the erroneous NIE is such that it would fail to inform members of the public doing a reasonable search of the Copyright Office records of the existence of a work that is subject to a Notice of Intent to Enforce, the Office will correspond with the filer concerning the doubt and, if appropriate, may resolve the doubt in favor of the filer and record the Correction NIE . Because the regulations of the Copyright Office allow the recordation of any document pertaining to a copyright, in instances where the Office refuses the recordation of a Correction NIE because the two-year period of eligibility for initial filing of an NIE has passed, a party may record any document, including one concerning rights restored under the URAA for a given work, but may not designate the document on its face to be a Notice of Intent to Enforce or a Correction Notice of Intent to Enforce. See 37 CFR 201.4 for Copyright Office regulations on recordation of transfers and other documents. All documents, including NIEs and Correction NIEs, submitted for recordation with the Office are found within the same bibliographic database and a reasonable search by title or owner should reveal all recordations filed with the Office concerning the same title or owner identity. C. Designation for a Correction Notice of Intent to Enforce A Correction NIE must be clearly indicated as such, i.e., the document filed should bear the title ``Correction Notice of Intent To Enforce,'' or ``Correction NIE.'' It must also specify the volume and document number for the recordation of the original NIE. This will enable the Office to record the correction with the appropriate cross- reference to the volume and document number of the original NIE. D. Format Information for Correction NIEs The suggested format for filing Correction NIEs generally follows the outline of the suggested format for the original filing. This is included as Appendix A below. The format will be made available over the Internet from where it can be downloaded for use. Where a party wishes to correct in the same filing NIEs for many titles, he or she can adapt the suggested format to allow more space for titles. Use of the format enables the filer to furnish information prescribed by the original NIE regulation in orderly form. When information (either required or optional) has been correctly given on the original NIE, the Correction NIE need not repeat that information. Filers should include information in the Correction NIE, however, that was omitted from the previous NIE which will help identify the restored work(s) involved. Correction NIEs must be in English, except for the original title, and either typed or printed by hand legibly in dark, preferably black, ink. They should be on 8\1/2\'' by 11'' white paper of good quality, with at least a 1'' (or 3 cm) margin. E. Fees The fee for a correction is the same as that for an initial NIE: for one work, the fee is thirty U.S. Dollars; for multiple works that meet the conditions for being filed on the same NIE, the fee is thirty U.S. Dollars for the first work, plus one dollar for each additional work. For NIE [[Page 55739]] filings, including corrections, see 37 CFR 201.33(e) for fee information. The filing fee partially reimburses the Office for its processing costs; the Office, therefore, does not refund fees for errors made by filers in NIEs. V. Multiple NIEs for the Same Work and Correction Cross-References When rights in a restored work are owned by several different parties, multiple NIEs for the same work may be submitted. For example, one person may own the exclusive right of reproduction and public distribution and another the exclusive right of public performance. When a work has multiple rights owners, each owner must file a separate NIE subject to the requirements for initial filing within two years of eligibility to receive the benefit of NIE filing. In the instance of multiple owners of rights in a single work, if a party is acting on behalf of an earlier owner of record in an NIE and purporting to correct that earlier NIE, the Office points out that only the NIE record in the name of that particular earlier owner will be cross- referenced. Nevertheless, all NIE records for a given title will be easily retrievable as a group; if the works as recorded bear the same title, the NIE records would appear together in any title search of online records. VI. Cancellations and Withdrawals The Office will not cancel a recordation of an NIE unless the recordation fee is uncollectible. While the recordation of NIEs may not, with the exception of an uncollectible fee, be canceled (i.e., expunged from the record), a request to record an NIE may be withdrawn if the request to withdraw is received before the record of the NIE has been made available to the public through the Internet. In order to withdraw an NIE, the filer must contact the Documents Unit of the Copyright Office before the online record (Copyright Office Publication and Interactive Cataloging System (COPICS)) has been made publicly available. If the Office has prepared the record for a work that is later withdrawn, it will not refund the fee. VII. Publication of Additional NIE List Under the URAA, the Office must publish the Federal Register list of NIEs processed by the Office every four months. 17 U.S.C. 104A(e)(1)(B)(i). Accordingly, lists have been published beginning on May 1, 1996. (61 FR 19372 (May 1, 1996); 61 FR 46134 (Aug. 30, 1996); 61 FR 68454 (Dec. 27, 1996); 62 FR 20211 (April 25, 1997) and 62 FR 44842 (Aug. 22, 1997)). The Office will publish its next list on December 19, 1997. This list will include NIEs received and processed in the Office through December 5, 1997. The final Federal Register list for works from countries that became eligible to file on January 1, 1996, is scheduled to be published on January 30, 1998. Cf. 17 U.S.C. 104A(e)(1)(B)(ii). This will include NIEs previously received in the Office but unprocessed by December 5, 1997, and NIEs received between December 5, 1997, and December 31, 1997, inclusive. Correction NIEs for major errors and new NIEs from source countries that became eligible to file on January 1, 1996, must be postmarked by December 31, 1997, to be accepted for January Federal Register publication. Correction NIEs for minor errors are acceptable at any time following eligibility, but the Office will not publish such minor corrections in the Federal Register. List of Subjects in 37 CFR Part 201 Cable television, Copyright, Jukeboxes, Literary works, Satellites. Interim Regulation In consideration of the foregoing, the Copyright Office amends 37 CFR part 201 in the manner set forth below: PART 201--GENERAL PROVISIONS 1. The authority citation for part 201 is revised to read as follows: Authority: 17 U.S.C. 702. 2. Section 201.34 is added to read as follows: Sec. 201.34 Procedures for filing Correction Notices of Intent to Enforce a Copyright Restored under the Uruguay Round Agreements Act. (a) General. This section prescribes the procedures for submission of corrections of Notices of Intent to Enforce a Copyright (NIEs) Restored under the Uruguay Round Agreements Act of December 8, 1994, as required by 17 U.S.C. 104A(e), as amended by Pub. L. 103-465, 108 Stat. 4809, 4976 (1994). (b) Definitions. For purposes of this section, the following definitions apply. (1) Major error. A major error in filing a Notice of Intent to Enforce a Copyright Restored under the Uruguay Round Agreements Act is an error in the name of the copyright owner or rightholder, or in the title of the work (as opposed to its translation, if any) where such error fails to adequately identify the restored work or its owner through a reasonable search of the Copyright Office NIE records. Omission of, or incorrect information regarding, a written agency relationship also constitutes a major error. (2) Minor error. A minor error in filing a Notice of Intent to Enforce a Copyright Restored under the Uruguay Round Agreements Act is any error that is not a major error. (3) Restored work. For the definition of works restored under the URAA, see 37 CFR 201.33. (c) Forms. The Copyright Office does not provide forms for Correction Notices of Intent to Enforce filed with the Copyright Office. It requests that filers of such Correction NIEs follow the format set out in Appendix A of this section and give all information listed in paragraph (d) of this section. Correction NIEs must be in English, and should be typed or legibly printed by hand in dark, preferably black ink, on 8\1/2\'' by 11'' white paper of good quality with at least a 1'' (or three cm) margin. (d) Requirements for Correction Notice of Intent to Enforce a Copyright Restored under the Uruguay Round Agreements Act. (1) A correction for a Notice of Intent to Enforce should be clearly designated as a ``Correction Notice of Intent to Enforce'' or ``Correction NIE.'' (2) Correction Notices of Intent to Enforce should be sent to the following address: URAA/GATT, NIEs and Registrations, PO Box 70400, Southwest Station, Washington, DC 20024, USA. (3) A Correction NIE shall contain the following information: (i) The volume and document number of the previous NIE which is to be corrected; (ii) The title of the work as it appears on the previous NIE, including alternative titles, if they appear; (iii) The English translation of the title, if any, as it appears on the previous NIE; (iv) A statement of the erroneous information as it appears on the previous NIE; (v) A statement of the correct information as it should have appeared and an optional explanation of its correction; or (vi) A statement of the information to be added. This includes optional information such as: (A) Type of work; (B) Rights owned by the party on whose behalf the Correction Notice is filed; (C) Name of author; (D) Source country; (E) Year of publication; (F) Alternative titles; (G) An optional explanation of the added information. (vii) The name and address: (A) To which correspondence concerning the document should be sent; and [[Page 55740]] (B) To which the acknowledgment of the recordation of the Correction NIE should be mailed; and (viii) A certification. The certification shall consist of: (A) A statement that, for each of the works named above, the person signing the Correction NIE is the copyright owner, or the owner of an exclusive right, or the owner's authorized agent, and that the information is correct to the best of that person's knowledge; (B) The typed or printed name of the person whose signature appears; (C) The signature and date of signature; and (D) The telephone and telefax number at which the owner, rightholder, or agent thereof can be reached. (4) A Correction NIE may cover multiple works in multiple NIE documents for one fee provided that: each work is identified by title; all the works are by the same author; all the works are owned by the same copyright owner or owner of an exclusive right. In the case of Correction NIEs, the notice must separately designate each title to be corrected, noting the incorrect information as it appeared on the previously filed NIE, as well as the corrected information. A single notice covering multiple titles need bear only a single certification. (5) Copies, phonorecords or supporting documents cannot be made part of the record of a Correction NIE and should not be submitted with the document. (6) Time for Submitting Correction NIEs. (i) Major errors. The Copyright Office will accept a Correction NIE for a major error concerning a restored work during the 24-month period beginning on the date of restoration of the work, as provided for original NIEs in section 104A(d)(2)(A) of title 17. (ii) Minor errors. The Office will accept a Correction NIE for a minor error or omission concerning a restored work at any time after the original NIE has been filed, as provided in section 104A(e)(1)(A)(iii) of title 17. (e) Fee.--(1) Amount. The filing fee for recording Correction NIEs is 30 U.S. dollars for each Correction Notice covering one work. For single Correction NIEs covering multiple works, that is, for works by the same author and owned by the same copyright owner or owner of an exclusive right, the fee is 30 U.S. dollars, plus one dollar for each additional work covered beyond the first designated work. (2) Method of payment. See 37 CFR 201.33(e)(1),(2). (f) Public online access. Information contained in the Correction Notice of Intent to Enforce is available online in the Copyright Office History Documents (COHD) file through the Library of Congress electronic information system, available through the Internet. This file is available from computer terminals located in the Copyright Office itself or from terminals located in other parts of the Library of Congress through the Library of Congress Information System (LOCIS). Alternative ways to connect through Internet are the World Wide Web (WWW), using the Copyright Office Home Page at: http:/www.loc.gov/ copyright; directly to LOCIS through the telnet address at locis.loc.gov; or the Library of Congress through gopher LC MARVEL and WWW which are available 24 hours a day. LOCIS is available 24 hours a day, Monday through Friday. For the purpose of researching the full Office record of Correction NIEs on the Internet, the Office has made online searching instructions accessible through the Copyright Office Home Page. Researchers can access them through the Library of Congress Home Page on the World Wide Web by selecting the copyright link. Select the menu item ``Copyright Office Records'' and/or ``URAA, GATT Amends U.S. law.'' Images of the complete Correction NIEs as filed will be stored on optical disk and will be available from the Copyright Office. Appendix A to Sec. 201.34--Correction Notice of Intent To Enforce Correction of Notice of Intent To Enforce 1. Name of Copyright Owner (or owner of exclusive right) If this correction notice is to cover multiple works, the author and the rights owner must be the same for all works covered by the notice.) ---------------------------------------------------------------------- 2. Title(s) (or brief description) (a) Work No. 1--______ Volume and Document Number: ______ English Translation: ______ (b) Work No. 2 (if applicable)--______ Volume and Document Number: ______ English Translation: ______ (c) Work No. 3 (if applicable)--______ Volume and Document Number: ______ English Translation: ______ (d) Work No. 4 (if applicable)--______ Volume and Document Number: ______ English Translation: ______ 3. Statement of incorrect information on earlier NIE: ---------------------------------------------------------------------- 4. Statement of correct (or previously omitted) information: ---------------------------------------------------------------------- Give the following only if incorrect or omitted on earlier NIE: (a) Type of work ______ (b) Rights owned ______ (c) Name of author (of entire work) ______ (d) Source Country ______ (e) Year of Publication (Approximate if precise year is unknown) ______ (f) Alternative titles ______ 5. Explanation of error: ---------------------------------------------------------------------- 6. Certification and Signature: I hereby certify that for each of the work(s) listed above, I am the copyright owner, or the owner of an exclusive right, or the owner's authorized agent, the agency relationship having been constituted in a writing signed by the owner before the filing of this notice, and that the information given herein is true and correct to the best of my knowledge. ---------------------------------------------------------------------- Name and Address (typed or printed): ---------------------------------------------------------------------- Telephone/Fax: ---------------------------------------------------------------------- As agent for: ---------------------------------------------------------------------- Date and Signature: ---------------------------------------------------------------------- Dated: October 22, 1997. Marybeth Peters, Register of Copyrights. ***11/25/97**