[Federal Register: December 4, 2001 (Volume 66, Number 233)]
[Rules and Regulations]
[Page 62942-62945]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM2001-7]
Disruption or Suspension of Postal or Other Transportation or
Communications Services
AGENCY: Copyright Office.
ACTION: Interim regulations; Request for comments.
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SUMMARY: The Copyright Office is adopting interim regulations to
address the effect of a general disruption or suspension of postal or
other transportation or communications services on the Office's receipt
of deposits, applications, fees, or any other materials, and the
assignment of a date of receipt to such materials. When the Register of
Copyrights has published a determination that there has been a general
disruption or suspension of such services, persons who have sent
materials to the Office and believe the Office's receipt of those
materials has been delayed may submit evidence that the materials would
have been received in the Office by a particular date but for the
disruption or suspension. The Office may assign, as the date of
receipt, the date on which the materials would have been received but
for the disruption or suspension.
DATES: The effective date of the interim regulations is December 4,
2001. Comments should be submitted no later than January 3, 2002.
ADDRESSES: An original and 10 copies of comments and reply comments
should be mailed to: Office of the General Counsel, Copyright GC/I&R,
P.O. Box 70400, Southwest Station, Washington, D.C. 20024-0400. If
delivered by hand, copies should be brought to: Office of the Copyright
General Counsel, Room LM-403, James Madison Memorial Building, 101
Independence Avenue, SE., Washington, DC.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
Patricia Sinn, Senior Attorney, Office of the General Counsel,
Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, D.C.
20024-0400. Telephone: (202) 707-8380. Telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION: Section 709 of title 17, United States Code
provides that:
In any case in which the Register of Copyrights determines, on
the basis of such evidence as the Register may by regulation
require, that a deposit, application, fee, or any other material to
be delivered to the Copyright Office by a particular date, would
have been received in the Copyright Office in due time except for a
general disruption or suspension of postal or other transportation
or communications services, the actual receipt of such material in
the Copyright Office within one month after the date on which the
Register determines that the disruption or suspension of such
services has terminated, shall be considered timely.
In cases of disruptions or suspensions of postal, transportation or
communications services, section 709 permits the Register to assign, as
the date of receipt for deposits, applications, fees and other
materials submitted to the Office, the date on which the materials
would have been received but for the disruption or suspension, so long
as the Office has actually received the material within one month after
the disruption or suspension has ended.
The Office has not promulgated any regulations relating to
determination of the appropriate date of receipt of materials when a
general disruption or suspension of postal or other transportation or
communications services has taken place. Until now, the Office has
perceived no need for such regulations. However, recent events have,
unfortunately, demonstrated that such regulations are necessary.
Concerns about anthrax in United States Postal Service facilities in
the District of Columbia have caused severe disruptions of postal
service to the Office since October 17.
Today the Register of Copyrights is publishing a separate notice
declaring that commencing on October 18, there has been a general
disruption of postal services to the Library of Congress. The Library
continues to experience disruptions in its postal service. The Register
shall publish another notice when she determines that the disruption of
services has ceased.
The Office has already received one request to assign a date of
receipt for a copyright registration application that was delayed due
to the disruption of postal services, and it is anticipated that
additional requests will be made. In order expeditiously to permit the
application of section 709 to materials submitted during the current
period of disruption of services, the Office is announcing interim
regulations to govern such requests and the Office's determination of
the date of receipt.
Assigning a date of receipt based on the date materials would have
been received but for the disruption is important in a number of
contexts. The effective date of registration of a copyright is the date
the application, fees and deposit are received by the Copyright Office.
17 U.S.C. 410(d). That date can affect the copyright owner's rights and
remedies, such as eligibility for statutory damages and attorney's
fees. See 17 U.S.C. 412 (statutory damages and attorney's fees
available only for works with effective date of registration prior to
commencement of infringement or, for published works, within three
months of first publication of the work). The date of recordation of a
document can be crucial in determining priorities among conflicting
transfers. See 17 U.S.C. 205, 37 CFR 201.9(c) (date of recordation is
the date when all elements required for recordation, including the
prescribed fee, have been received in the Copyright
[[Page 62943]]
Office). The date of recordation of a notice of termination of a grant
of a transfer or license can be crucial in determining whether the
termination is effective. See 17 U.S.C. 304(c)(4)(b) (notice of
termination must be recorded in the Copyright Office before the
effective date of termination), 37 CFR 201.10((f)(3) (date of
recordation of notice of termination is the date when all of the
elements required for recordation have been received in the Copyright
Office).
Under section 201.8(a) of the interim regulations, when the
Register determines that there has been a general disruption or
suspension of postal or other transportation or communications services
that has delayed the receipt by the Copyright Office of deposits,
applications, fees, or any other materials, the Register shall publish
an announcement to that effect. When the state of disruption or
suspension of such services has ceased, the Register shall publish an
announcement to that effect.
Section 201.8(b) provides that persons who have submitted material
to the Office, the receipt of which has been delayed due to the
suspension or disruption of services, may request that the Register
assign, as the date of receipt of the material, the date on which the
Register determines the material would have been received but for the
disruption or suspension of services. Section 201.8(f) states where
such requests should be sent.
Section 201.8(c) sets forth when a request may be submitted.
Requests pertaining to applications for copyright registration must be
made no later than one year after the claimant has received a
certificate of registration. Such requests ordinarily will not be
permitted until after the claimant has received a certificate of
registration. Exceptions are made for cases in which the Office is
communicating with a claimant about the application for other reasons,
or other cases in which the Register finds there is good cause to
consider a request prior to issuance of the certificate. In general,
permitting the submission of requests prior to issuance of the
certificate would impose unacceptable burdens on the Office due to
difficulties in locating the particular pending applications to which
the requests pertain. But when the Office has already communicated with
the claimant in connection with an application, and the claimant is
responding to the communication from the Office, the claimant may
submit the request because there should be no difficulty in locating
the application which is the subject of the communication.
Requests relating to transfers of copyright or other documents
submitted for recordation must also be made no later than one year
after the person seeking recordation has received a certificate of
recordation, but there is no requirement to wait until after the
certificate has issued. In fact, because it is easier for the Documents
Recordation Section of the Cataloging Division to correct the date of
recordation prior to recording the document, persons seeking adjustment
of the date of receipt of a document submitted for recordation are
encouraged to submit requests as soon as possible.
Requests pertaining to any other material submitted to the
Copyright Office must be made no later than one year after the date the
material is received by the Office.
Section 201.8(d) provides that when a certificate of registration
or a certificate of recordation has already been issued, the original
certificate must be returned to the Office along with the request. If
the request is granted, the Office will issue a new certificate with
the revised effective date of registration or date of recordation. If
the request is not granted, the original certificate will be returned.
Section 201.8(e) provides that as evidence that the material would
have been received on that date, the person making the request must
submit a receipt from the United States Postal Service or a delivery
service such as, or comparable to, United Parcel Service, Federal
Express, or Airborne Express, indicating how and when the material was
received by the Postal Service or delivery service, and indicating
sufficient information to determine when the Postal Service or delivery
service would have delivered the material to the Copyright Office but
for the disruption or suspension of services. The Office will also
accept other documentary evidence that it considers equivalent to such
receipts, and it will accept sworn statements from persons with
personal knowledge of the facts relating to the attempt to deliver the
material to the Office.
Section 201.8(f) provides for certain presumptions as to when
material deposited with the United States Postal Service or a delivery
service would have been received but for the disruption or suspension
of services.
Effective Date
Because of the unanticipated nature of the recent disruption in
services and the necessity of providing a mechanism that will
immediately permit the Copyright Office to adjust the date of receipt
of materials in appropriate circumstances due to that disruption, the
Register finds that there is good cause for the interim regulations to
take effect immediately.
Request for Comments
The Office solicits comments from the public on these interim
regulations. Comments are due 30 days from the date these regulations
are published. The Office will consider these comments in preparing
final regulations.
The Office also solicits comments concerning a related issue. The
Office was closed for business from October 18 through October 24,
2001, because of concerns about possible anthrax contamination in the
Library of Congress. During this period, the Office could not receive
any applications, fees, deposits or other materials, whether by mail,
courier or any other means of delivery. Because the Office's inability
to receive materials during this time period was due to the closure of
the Library of Congress, and not due to a general disruption or
suspension of postal or other transportation or communications
services, it does not appear that section 709 provides any authority
for the Register to assign a date of receipt during that period for any
materials that would have been received by the Office on a day during
that period but for the closure of the Library. Thus, a person who
attempted to deliver an application for copyright registration to the
Office in person on October 22 would not be able to seek an effective
date of registration of October 22, because the Office was not open on
that date.
Section 410(c) of 17 U.S.C. provides that ``[t]he effective date of
a copyright registration is the day on which an application, deposit,
and fee, which are later determined by the Register of Copyrights or by
a court of competent jurisdiction to be acceptable for registration,
have all been received in the Copyright Office.'' (Emphasis added). The
only exception to the requirement that the effective date of
registration be the date of actual receipt is set forth in section 709,
which does not address the unanticipated closure of the Office.
Moreover, a person who deposited an application addressed to the
Office with an overnight delivery service on October 17, with an
expected date of receipt in the Office of October 18, would not be able
to seek an effective date of registration on October 18 because section
709 only permits the Register to assign as a date of receipt the date
on which the material ``would have been received in the Copyright
Office in due time except for a general disruption or suspension of
postal or other
[[Page 62944]]
transportation or communications services.'' (Emphasis added.) In this
case, the reason the Office did not receive the application on October
18 was not a general disruption or suspension of postal or other
transportation or communications services; it was the closure of the
building that houses the Office. Thus, the earliest date of receipt
that the Office could assign to the application would be October 25,
the next date on which the Office was open.
The Office would like to be able to offer relief to persons who
were unable to deliver materials to the Office due to unanticipated
closure of the Office during normal business hours, but we are aware of
no authority that permits us to grant such relief. We welcome any
comments providing citations to and analysis of authority that would
permit the Office to issue regulations governing such a situation
notwithstanding the express language of 17 U.S.C. 410(c).
List of Subjects in 37 CFR Part 201
Communications, Copyright, Postal service.
Interim Regulations
In consideration of the foregoing, the Register of Copyrights
amends part 201 of 37 CFR on an interim basis as follows:
PART 201--GENERAL PROVISIONS
1. The authority citation for part 201 continues to read as
follows:
Authority: 17 U.S.C. 702.
2. Section 201.8 is added to read as follows:
Sec. 201.8 Disruption of postal or other transportation or
communication services.
(a) For purposes of 17 U.S.C. 709, when the Register has determined
that there is or has been a general disruption or suspension of postal
or other transportation or communications services that has delayed the
receipt by the Copyright Office of deposits, applications, fees, or any
other materials, the Register shall publish an announcement of that
determination, stating the date on which the disruption or suspension
commenced. The announcement may, if appropriate, limit the means of
delivery that are subject to relief pursuant to section 709. Following
the cessation of the disruption or suspension of services, the Register
shall publish an announcement stating the date on which the disruption
or suspension has terminated.
(b) At the request of any person who provides satisfactory evidence
that he or she has attempted to deliver a deposit, application, fee or
other material to the Copyright Office but that receipt by the
Copyright Office was delayed due to a general disruption or suspension
of postal or other transportation or communications services, the
Register shall assign, as the date of receipt of the deposit,
application, fee or other material, the date on which the Register
determines the material would have been received but for the disruption
or suspension of services, if the deposit, application, fee or other
material was actually received in the Copyright Office within one month
after the disruption or suspension of services has terminated.
(c) Timing. The request shall be made:
(1) With respect to an application for copyright registration, no
earlier than the date on which the claimant receives the certificate of
registration and no later than one year after the date on which the
claimant receives the certificate of registration; provided, however,
that a request may be made prior to receipt of a certificate of
registration--
(i) If the Copyright Office has communicated with the claimant
relating to the application and the claimant makes the request as part
of a response to the communication from the Office; or
(ii) If the Register determines that good cause exists to entertain
a request prior to the issuance of a certificate of registration;
(2) With respect to a transfer of copyright ownership or other
document submitted for recordation pursuant to 17 U.S.C. 205, no later
than one year after the date on which the person submitting the
transfer or document receives the certificate of recordation;
(3) With respect to any other material, no later than one year
after the date on which the material was actually received in the
Copyright Office.
(d) In cases in which a certificate or registration or a
certificate of recordation has already been issued, the original
certificate must be returned to the Copyright Office along with the
request.
(e) For purposes of paragraph (b) of this section, satisfactory
evidence shall consist of:
(1) A receipt from the United States Postal Service indicating the
date on which the United States Postal Service received material for
delivery to the Copyright Office by means of first class mail, Priority
Mail or Express Mail;
(2) A receipt from a delivery service such as, or comparable to,
United Parcel Service, Federal Express, or Airborne Express, indicating
the date on which the delivery service received material for delivery
to the Copyright Office and
(i) The date on which delivery was to be made to the Copyright
Office, or
(ii) The period of time (e.g., overnight, or 2 days) from receipt
by the delivery service to the date on which delivery was to be made to
the Copyright Office;
(3) Other documentary evidence which the Register deems equivalent
to the evidence set forth in paragraphs (e)(1) and (2) of this section;
or
(4) A sworn statement from a person with actual knowledge of the
facts relating to the attempt to deliver the material to the Copyright
Office, setting forth with particularity facts which satisfy the
Register that in the absence of the general disruption or suspension of
postal or other transportation or communications services, the material
would have been received by the Copyright Office by a particular date.
(f) For purposes of paragraph (b) of this section, the Register
shall presume that but for the general disruption or suspension of
postal or other transportation or communications services,
(i) Materials deposited with the United States Postal Service for
delivery by means of first class mail would have been received in the
Copyright Office seven days after deposit with the United States Postal
Service;
(ii) Materials deposited with the United States Postal Service for
delivery by means of Priority mail would have been received in the
Copyright Office three days after deposit with the United States Postal
Service;
(iii) Materials deposited with the United States Postal Service for
delivery by means of Express mail would have been received in the
Copyright Office one day after deposit with the United States Postal
Service;
(iv) Materials deposited with a delivery service such as, or
comparable to, United Parcel Service, Federal Express, or Airborne
Express, would have been received in the Copyright Office on the date
indicated on the receipt from the delivery service.
(g) Requests pursuant to paragraph (b) of this section shall be
addressed to: Chief, Copyright Office Receiving & Processing Division,
Copyright Office, and if delivered by hand they should be brought to
the Copyright Office Public Information Office, Library of Congress,
James Madison Memorial Building, Room 401, First and Independence
Avenue, SE., Washington, DC. If mailed, the request should be addressed
to Chief, Receiving & Processing Division, P.O. Box 71380, Washington,
DC 20024-1380.
[[Page 62945]]
Dated: November 26, 2001.
Marybeth Peters,
Register of Copyrights.
Approved by:
James H. Billington,
Librarian of Congress.
[FR Doc. 01-30013 Filed 12-3-01; 8:45 am]
BILLING CODE 1410-30-P