[Federal Register: April 1, 1998 (Volume 63, Number 62)]
[Proposed Rules]
[Page 15802-15806]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Parts 201, 202, 203, 204 and 211
[Docket No. 98-2]
Fees
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This notice is issued to inform the public that the Copyright
Office is proposing new fees for special services. The effect of these
proposed amendments is to increase existing fees and to institute fees
for existing special services as authorized in the Copyright Act. These
fees are limited to such special services, and each fee is based on the
actual cost to the Office of providing that service. The proposed
amendments include revisions to existing fees covering full-term
storage, special handling of copyright
[[Page 15803]]
registration, and other expedited services. They also institute new
fees for existing services such as processing appeals and handling
underfunded deposit accounts.
DATES: Written comments are due by May 11, 1998.
ADDRESSES: An original and fifteen copies of the comments should be
addressed, if sent by mail, to: David O. Carson, General Counsel,
Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, D.C.
20024. If delivered by hand, copies should be brought to: Office of the
General Counsel, United States Copyright Office, James Madison Memorial
Building, Room 403, First Street and Independence Avenue, S.E.,
Washington, D.C.
FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Assistant
General Counsel, or Patricia Sinn, Senior Attorney, Copyright GC/I&R,
P.O. Box 70400, Southwest Station, Washington, D.C. 20024, or telephone
(202) 707-8380. Fax: (202) 707-8366.
SUPPLEMENTARY INFORMATION:
I. Background
A. Congressional Authorization
The Copyright Office is funded annually by congressional
appropriation; however, the total appropriation includes a credit based
on an estimate of the projected fee income to be received during a
fiscal year for services provided.
Title 17, United States Code, section 708, authorizes the Register
of Copyrights to require payment of fees for services specifically
described in section 708(a)(1)-(9) such as registration, recordation,
and certification. These ``statutory'' fees must be set or approved by
Congress. See Pub. L. No. 105-80, 111 Stat. 1529 (1997). In addition,
paragraph 708(a)(10) permits the Register to require for ``any other
special services requiring a substantial amount of time or expense,
such fees as the Register of Copyrights may fix on the basis of the
cost of providing the service.'' Commonly referred to as discretionary
fees, these latter fees relate to services not within the Office's
ordinary functions such as special handling and other expedited
services and may be set by the Register based on the cost to the Office
of providing the service.
Although the Office was authorized to increase statutory fees in
1995, it did not do so. It did, however, increase discretionary fees in
1994. See 58 FR 38369 (July 28, 1994).
Congress continues to encourage every federal agency to recover the
costs of its operations. Legislation was passed by the 105th Congress
and signed into law on November 13, 1997, which amended 17 U.S.C.
708(b) to give the Register in calendar year 1997, and in any
subsequent calendar year, the authority to increase fees specified in
17 U.S.C. 708(a), following study of the costs incurred by the Office
for providing services. Pub.L. No. 105-80, 111 Stat. 1529 (1997). In
that legislation Congress directed the Office to set fees that recover
the reasonable costs, but to consider whether a proposed fee is fair
and equitable and gives due consideration to the objectives of the
copyright system.
B. Studies Emphasizing Cost Recovery
In the past few years there have been several studies of existing
Copyright Office fees. The General Accounting Office (GAO) reviewed
Copyright Office practices and operations and issued a final report on
May 9, 1997, titled Report to the Chairman, Committee on the Judiciary,
U.S. Senate, INTELLECTUAL PROPERTY: Fees Are Not Always Commensurate
with the Costs of Services. GAO concluded that ``Congress may wish to
consider whether the Copyright Office should achieve full cost recovery
through fees. GAO/RCED-97-113, at 7-8, May 9, 1997. GAO also issued a
report following a management review of the Library which recommended
full recovery of copyright costs (Library of Congress: Opportunities to
Improve General and Financial Management, GAO/T-GGD/AIMD-96-115, May 7,
1996). Congress has also indicated that the Office should recover a
greater percentage of its costs.
The Copyright Office has directed a comprehensive study by an
outside consultant of the operating costs involved in providing
services to users to determine whether fees should be adjusted. Working
with a task force within the Office, the consultant examined existing
fees for services, identified costs for other services, and calculated
the costs of providing each service.
C. Office Assessment of Fees
The Office then examined the fees identified by the consultant in
light of operational and other considerations and determined what it
should propose as a fee for each service. The Office has endeavored to
ensure that each service it provides not only supports copyright owners
and users but also recovers reasonable costs. It is aware that special
services provided to identifiable recipients should carry a charge that
recovers the cost of providing those services.
Based on its analysis, the Office is proposing a number of new fees
for existing special services.<SUP>1</SUP> In the past the costs of
these special services have been absorbed by the Office. The new fees
include fees for handling underfunded deposit accounts, and processing
appeals. The Office is also proposing adjustments to existing fees for
special services.
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\1\ The Office does not plan to amend statutory fees until next
year; after extensive opportunity for public hearings, it will
propose a new schedule for Congressional review.
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II. Institution of New Fees for Special Services
A. Deposit Accounts
The Copyright Office maintains a system of deposit accounts for the
convenience of those who frequently use its services. A deposit account
holder can charge copyright fees against the balance in his or her
deposit account instead of sending separate remittances with
applications and other requests for services. One advantage for the
holder of a deposit account is that the Office may begin the work
immediately if sufficient funds are in the account.
The Office proposed a number of fees for maintaining deposit
accounts in 1994. 59 FR 38400 (July 28, 1994). Based on the comments it
received, the Office decided not to move forward with any charges at
that time. Moreover, despite considerable expense to the Office in
maintaining deposit accounts, it is not now proposing a maintenance fee
for deposit accounts primarily because the use of deposit accounts is
beneficial both to the holder and the Office. The Office is, however,
proposing two new fees related to handling underfunded deposit
accounts. A deposit account holder may avoid both of these charges by
keeping his or her deposit account balance at a level sufficient to
cover all claims submitted. A new system that produces timely deposit
account statements is in place to assist account holders in regulating
their business.
1. Service fee for Deposit Account Overdraft--$70.00
The first new fee would cover overdrafts caused when a deposit
account holder has insufficient funds to process claims. When deposit
account funds are not sufficient to cover registration, the Office sets
aside the claim until the account holder is contacted and funds are
forwarded to the Office. To offset expenses incurred for handling an
overdrawn account, the
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Office proposes to charge a $70.00 fee per instance (not per claim).
This fee will be deducted from the replenishment funds forwarded by the
deposit account holder.
2. Dishonored Check Fee From Deposit Account Holder--$35.00
The Office is also proposing a fee when a deposit account holder's
check is dishonored because of insufficient funds in an applicant's
account, or for other banking problems. By the time the Office
discovers that a check cannot be negotiated, it has already expended
staff time and resources to process the paperwork. The Office proposes
to charge a fee of $35.00 to cover the administrative expenses incurred
in processing the dishonored check. This fee will be deducted
immediately or, if the account is in arrears, upon successful
replenishment.
B. Short Fee Service Charge--$20.00
A ``short fee'' is a remittance paid by cash, check, or money order
to the Copyright Office which is not sufficient to pay for the
requested service. Any time new statutory fees are instituted, the
Office gets a number of fees that are insufficient. For the first year
after the last statutory fee adjustment, 20% of the cash fees were
insufficient. When a fee is insufficient, the Office deposits the money
submitted, holds the claim, and asks the remitter for additional money
to complete the fee. To recover the administrative cost of processing
this material, the Office proposes to charge a $20.00 short fee per
submission.
Although the Office is still getting short fees from the 1991
increase on statutory fees, it does not plan to implement a short fee
service charge until on or about January 1, 2000. The Office will
notify the public of the new statutory fees.
C. Appeals--1st Appeal $200.00, 2nd Appeal $500.00, Additional Related
Claim $20.00
The Office has long accepted appeals from initial refusals to
register a claim to copyright, but there has been no separate charge
above the initial registration fee for reconsidering the claim. The
Office has a two level review of appeals; the first request for
reconsideration goes to the Examining Division. Since 1995, the second
request for reconsideration has been reviewed by a three member Board
of Appeals. The processing of appeals is very labor intensive, and the
fee to recover actual costs would be more than three times the fee the
Office is proposing. The Office determined, however, that the fee for
appeals should be less since U.S. applicants must attempt to register
before initiating a copyright infringement suit and must exhaust
administrative remedies before initiating an action against the
Register under the Administrative Procedure Act for refusal to
register. The Office is, therefore, proposing a fee of $200.00 for
first appeals, plus an additional fee of $20.00 for each related claim
after the first for a group of related works on which one appeal is
filed. The Office is proposing a fee of $500.00 for second appeals,
with an additional fee of $20.00 for each related claim. For example,
if an appellant appeals the rejection of four related jewelry designs,
the cost of the first appeal would be $260.00; if the same appeal goes
to the Board, the cost would be $560.00.
D. Secure Tests Processing Fee Per Hour--$60.00
Secure tests are nonmarketed tests administered under supervision
at specified cites on specific dates, all copies of which are accounted
for and either destroyed or returned to restricted locked storage
following each administration. Publishers of these tests ensure the
confidentiality of the tests by protecting and retaining the test
materials. To maintain secrecy, the Office examines these test
materials in the presence of the applicant, but outside the regular
work station, and returns the test material to the applicant, keeping
only a small portion of material photocopied from the original as the
permanent deposit of identifying material. The applicant thus gets
special treatment. In the past, the Office has made no assessment for
special processing of these secure tests; it is proposing a $60.00 per
hour fee to recover costs for labor and special arrangements.
III. Fee Adjustments to Fees for Special Services
A. The Office is Also Proposing the Following Increases to Current Fees
for Special Services
1. Copying fee--$15.00 Minimum, $1.00/Page up to First 15, $.50 per
Page Thereafter
The Office will continue to duplicate records maintained in its
custody under conditions detailed in the applicable regulatory
provisions. The Office proposes to change its current charges for
copying of black and white material that cannot leave the custody of
the Office to $1.00 per page for the first 15 pages. For large
documents the Office proposes a fee based on a sliding scale; it
proposes a fee of $.50/page for every page after the fifteenth. Thus
the proposed fee for copying a 50 page document will be $32.50. The
higher copying cost for the first 15 pages of this material is
justified because of the time staff needs to set up the material copied
and to verify the complete accuracy of the copy. The minimum fee for
black and white material will be $15.00. The Office is not changing its
copying fee for color material.
2. Inspection Fee--$65.00
The Office currently charges a daily fee of $10.00 to a customer
who wishes to inspect deposits of Copyright Office records on the
premises. The service is provided by the Certifications and Documents
Section of the Information and Reference Division. A Copyright Office
employee monitors the inspection to ascertain that no copying of the
deposit takes place. The proposed fee of $65.00 will be charged in
combination with the applicable search fee to locate and retrieve the
material being inspected.
3. Special Handling fee for Registration--$500.00 Additional Claim
$50.00
Although the effective date of registration is the date the
application, required fee, and deposit are received, it takes the
Office several months to process a claim and mail the certificate of
registration. Special handling is granted at the discretion of the
Register as a special service to copyright applicants who have a
compelling reason for the expedited issuance of a certificate of
registration. A request for special handling is granted in cases
involving pending or prospective litigation, customs matters, or
contract or publishing deadlines that necessitate expedited service.
Special handling affects every step of the registration or
recordation process. A claim that receives special handling must be
processed outside the regular system of first in--first out,
necessitating individual handling at each step and individual routing
between work stations. A separate system of controls must be maintained
for the special handling of a claim to assure both that it moves
expeditiously through the necessary procedures and that it can be
located quickly should the need arise.
The fee for special handling was last increased in 1994 to $330
plus the registration fee. 59 FR 38369 (July 28, 1994). The proposed
new fee is $500.00 plus the registration fee. The terms under which a
request for special handling is approved or denied will not be altered.
If a claim is eligible for special handling, the Copyright Office
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makes every effort to process the claim or notify the applicant of any
problem in processing the claim within five working days after the
request has been approved. To ensure expedited treatment, the claimant
should deliver the material to the Public Information Office.
4. Special Handling fee for Recordation of a Document--$330.00
The Office will maintain its fee of $330.00 for this service. The
same factors involved in special handling for registration claims
described above apply almost entirely to special handling for
recordation of a document. One major difference is that the Office has
centralized most aspects of the documents recordation process. This
centralization means that special handling for documents is less costly
to the Office than special handling for registration and no fee change
is necessary.
5. Full Term Storage of Deposits of Published Works--$365.00
Full term storage of unpublished works is mandated by the Copyright
Act. The Office's policy is to retain deposit copies of published works
for at least five years from the date of deposit; if practicable, it
retains works of visual arts for ten years. The Office also offers full
term retention of deposit copies of published works upon payment of a
fee. The purpose of this service is to assure copyright owners that the
deposit copies of their published works will be kept in the Copyright
Office's custody for the full term of copyright, which can be up to 125
years.
Congress authorizes a fee for full term storage in 17 U.S.C.
704(e). Previously the cost for this service was $270.00; however, due
to increased costs, the Office proposes a fee of $365.00.
B. Surcharge for Expedited Certifications and Documents Services
Fees for services requested on an expedited basis from the
Certification and Documents Section must be increased to reflect more
accurately the Office's actual costs and expenses. The Office is aware,
however, that some of these services can only be performed by the
Office and that fact was considered in proposing new fees.
Those who request special services do so for the same purposes that
lead to requests for special handling. Special service requests require
disruption of normal work flow; therefore, the service is more costly
to the Office. These are all unique services, and the increased costs
take into account the fact that extraordinary efforts are often
required both in time and places searched. Often Copyright Office
employees must travel to an off-site storage facility to expedite a
search.
1. Additional Certificate, in Process Search, Copy of Assignment--
$75.00/Hour
The current fee for providing an expedited additional certificate,
performing an in-process search for material related to a claim, or
furnishing a copy of an assignment or certification is $50.00 per hour.
The Office proposes a $75.00 per hour fee for any of these services.
2. Copy of Registered Deposit--First Hour $95.00; Each Additional Hour
$75.00
The fee for providing an expedited copy of a registered deposit
which is stored off-site in a Copyright Office storage facility is
currently $70.00 per hour. The Office proposes a fee for these services
of $95.00 for the first hour required to perform the service, and
$75.00 for each additional hour or portion thereof.
3. Copy of Correspondence File--First Hour $95.00, Each Additional Hour
$75.00
The fee for expedited provision of a copy of a correspondence file
whether stored on the Copyright Office premises or at an off-site
Copyright Office storage facility is $70.00 per hour. The Office
proposes a new fee of $95.00 per hour for the first hour and $75.00 for
each additional hour.
All of these expedited service fees are surcharges and will be
added to the regular charge for the service provided. For example, if
an applicant wants an expedited copy of a deposit and it takes the
Office one hour to locate the deposit, the $95.00 charge will be added
to the regular search fee for one hour, plus the appropriate copying
fee.
C. Reference and Bibliography Search Fee--$125.00/Hour, $95.00/Hour
Upon request, the Office's Reference and Bibliography Section will
perform an expedited search of its records. Currently, the Office
charges $100.00 for the first hour and $50.00 for each additional hour
for such searches. The proposed fee for performing an expedited search
is $125.00 for the first hour, and $95.00 per hour or portion of an
hour thereafter. These expedited service fees are in addition to the
regular charge for a reference search. Charges for providing searches,
certifications, or copies that are not made on an expedited basis will
remain at the same level.
D. Mask Work Registration--$75.00
The Office proposes a fee of $75.00 to recover the full cost to the
Office of processing claims in mask works. Mask works are provided an
exclusive commercial right different from copyright as provided in the
Semi-conductor Chip Protection Act. Claimants seeking mask work
protection receive registration and the accompanying legal benefits,
including an extended term of protection.
E. Recordation of Notices of Intent to Enforce (NIE)--$30.00, Each
Group of 10 Additional Titles $10.00
Although the consultants' study established that a higher fee would
be necessary to recover costs of recording NIE's, the Office does not
propose any amendment since the cost of publicizing the new charge
would be more than the Office would recover with a higher fee.
Moreover, the vast majority of rightsholders are no longer eligible to
file NIE's with the Office.
List of Subjects
37 CFR Part 201
Copyright, General Provisions.
37 CFR Part 202
Copyright, Registration.
37 CFR Part 203
Freedom of Information Act.
37 CFR Part 204
Privacy.
37 CFR Part 211
Mask Work Protection, Fees.
In consideration of the foregoing, parts 201, 202, 203, 204, and
211 of 37 CFR chapter II are amended as follows:
PART 201--GENERAL PROVISIONS
1. The authority citation for part 201 continues to read as
follows:
Authority: 17 U.S.C. 702.
Sec. 201.32 Fees for Copyright Office special services.
2. Section 201.32 is amended by revising the special services fee
chart to read as follows:
* * * * *
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Special services Fees
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1. Service charge for deposit account overdraft.............. $70
2. Service charge for dishonored deposit account replenishment
check........................................................ 35
3. Service charge for short fee payment
4. Appeals.................................................... 20
a. First appeal
Additional claim in related group........................... 200
b. Second appeal............................................ 20
Additional claim in related group......................... 500
5. Secure test processing charge, per hour.................... 20
6. Copying charge, first 15 pages, per page................... 60
Each additional page...................................... 1
7. Inspection charge.......................................... 50
8. Special handling fee for a claim 65
Each additional claim using the same deposit.............. 500
9. Special handling for recordation of a document............. 50
10. Full-term storage of deposits............................. 330
11. Surcharge for expedited Certifications and Documents
Section services 365
a. Additional certificates, per hour
b. In-process searches, per hour.......................... 75
c. Copy of assignment, per hour........................... 75
d. Certification, per hour................................ 75
e. Copy of registered deposit............................. 75
First hour
Each additional hour.................................... 95
f. Copy of correspondence file............................ 75
First hour
Each additional hour.................................... 95
12. Surcharge for expedited Reference & Bibliography searches. 75
First hour.............................................. 125
Each additional hour.................................... 95
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PART 202--REGISTRATION OF CLAIMS TO COPYRIGHT
3. The authority citation for part 202 continues to read as
follows:
Authority: 17 U.S.C. 702.
Sec. 202.23 [Amended]
4. Section 202.23(e)(1) and (2) are amended by removing ``$270.00''
each place it appears and adding in its place ``$365.00.''
PART 203--FREEDOM OF INFORMATION ACT: POLICIES AND PROCEDURES
5. The authority citation for part 203 continues to read as
follows:
Authority: 17 U.S.C. 702; and 5 U.S.C. 552(a)(1).
Sec. 203.6 [Amended]
6. Section 203.6(b)(2) is amended by removing ``$7 for up to 15
pages and $.45 per page over 15.'' and adding in its place ``$15.00 for
up to 15 pages and $.50 per page over 15.''.
PART 204--PRIVACY ACT: POLICIES AND PROCEDURES
7. The authority citation for part 204 continues to read as
follows:
Authority: 17 U.S.C. 702; and 5 U.S.C. 552(a).
Sec. 204.6 [Amended]
8. Section 204.6(a) is amended by removing ``$7 for up to 15 pages
and $.45 per page over 15.'' and adding in its place ``$15.00 for up to
15 pages and $.50 per page over 15.''
PART 211--MASK WORK PROTECTION
9. The authority citation for part 211 continues to read as
follows:
Authority: 17 U.S.C. 702 and 908.
Sec. 211.3 [Amended]
10. In Sec. 211.3(a)(1) and (2) remove ``$20.00'' each place it
appears and add in is place ``$75.00.''
11. In Sec. 211.3(a)(7), remove ``$330'' and add in its place
``$500.00.''
Dated: March 24, 1998.
David O. Carson,
General Counsel.
Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 98-8207 Filed 3-31-98; 8:45 am]
BILLING CODE 1410-30-P