[Federal Register: November 15, 2002 (Volume 67, Number 221)]

[Rules and Regulations]               

[Page 69134-69137]

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LIBRARY OF CONGRESS



Copyright Office



37 CFR Part 201



[Docket No. RM 2001-2A]



 

Notice of Termination



AGENCY: Copyright Office, Library of Congress.



ACTION: Final rule.



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SUMMARY: The Copyright Office is publishing a final rule amending its 

regulation governing notices of termination of transfers and licenses 

covering the extended renewal term. The current regulation is limited 

to notices of termination made under section 304(c) of the copyright 

law. The Sonny Bono Copyright Term Extension Act created a separate 

termination right under section 304(d). The final rule establishes 

procedures governing notices of termination of the extended renewal 

term under either section 304(c) or section 304(d).



EFFECTIVE DATE: January 1, 2003.



FOR FURTHER INFORMATION CONTACT: Kent Dunlap, Principal Legal Advisor 

for the General Counsel. Telephone: (202) 707-8380. Telefax: (202) 707-

8366.



SUPPLEMENTARY INFORMATION:



1. Background



    Under the 1909 copyright law, works copyrighted in the United 

States before January 1, 1978, were subject to a renewal system in 

which the term of copyright was divided into two consecutive terms. 

Under the system initially established by the 1909 legislation, the 

duration of copyright protection was for an original copyright term of 

28 years and a renewal term of an additional 28 years. The Copyright 

Act of 1976, Public Law 94-554, retained the renewal system for works 

that were copyrighted before 1978, and were still in their first term 

on January 1, 1978. However, under section 304 of the copyright law, 

the renewal term was extended to 47 years, creating a total potential 

duration period of 75 years.



[[Page 69135]]



    Besides generally extending the renewal term to 47 years, Congress 

also provided a termination procedure authorizing the termination of 

transfers or licenses during the extended portion of the renewal term. 

Established under section 304(c) of the copyright law, this provision 

created a means for authors and heirs of authors to secure the benefits 

of the additional 19 years added to the renewal term. In 1977, the 

Copyright Office adopted a regulation establishing the procedures for 

exercising the termination right. 37 CFR 201.10.

    On October 27, 1998, President Clinton signed into law the Sonny 

Bono Copyright Term Extension Act, ("CTEA"), Public Law 105-298, 112 

Stat. 2827 (1998). The CTEA amended the copyright law, title 17 of the 

United States Code, to extend for an additional 20 years the term of 

copyright protection in the United States. For works for which the 

duration of protection was determined under section 304 of title 17, 

the renewal term was extended from 47 years to 67 years. Like the 

Copyright Act of 1976, CTEA also contained a termination provision 

covering the newly extended portion (in this case, the last twenty 

years) of the extended renewal term. Established under section 304(d), 

this new right of termination was available only if the termination 

right under section 304(c) had expired by the effective date of CTEA, 

and if no termination had been previously exercised under section 

304(c).



2. Proposed Regulation



    On May 3, 2001, the Copyright Office published a proposed 

regulation modifying the termination regulation to include terminations 

made under section 304(d), in addition to terminations under section 

304(c). 66 FR 22139. This was to be accomplished by making several 

adjustments to existing Copyright Office regulations.

    Most of the changes involved 37 CFR 201.10, which governs notices 

of termination of transfers and licenses covering the extended renewal 

term. The proposed regulation added introductory text clarifying that 

the scope of the regulation covers terminations under either section 

304(c) or section 304(d). In provisions where the existing regulation 

referred to section 304(c), the proposed regulation added an 

alternative reference to section 304(d).

    The Office proposed substantive changes in only two areas. First, 

subsection (c)(i) of the proposed regulation provided that if the 

termination is made under section 304(d), the notice will provide a 

statement to that effect. Most of the notices of termination made under 

304(d) which have been received in this Office already contained such a 

statement. No corresponding requirement was imposed in notices of 

termination issued under section 304(c) because such a requirement 

would have upset established legal practices in issuing notices under 

that section.

    The second substantive change in the proposed regulation created 

new subsection (c)(vi), requiring that notices under section 304(d) 

contain a statement that termination of rights for the extended renewal 

term had not been previously exercised. This is a statutory requirement 

imposed in subsection 304(d), and including the requirement as part of 

the notice made it less likely that second notices of terminations 

would be filed.

    The proposal further included a provision modifying 37 CFR 

201.4(a)(v), regarding recordation of transfers and certain other 

documents, to include a reference to section 304(d).



3. Comments and Modifications



    The Copyright Office received one comment on the proposed 

modification of the regulations. Professor Tyler Ochoa of Whitter Law 

School suggested two modifications in the content of the termination 

notice to make it consistent with the statute. First, he noted that 

since terminations cannot be made for works made for hire, notices of 

termination for both section 304(c) and (d) should affirmatively state 

that the work is not a work made for hire. Second, he pointed out that 

in order to be eligible to terminate under section 304(d), the 

termination right under section 304(c) must have expired by the 

effective date of the Sonny Bono Copyright Term Extension Act. Since 

CTEA took effect on October 27, 1998, Professor Ochoa calculated that 

termination under section 304(d) would only be available for works 

first published between January 1, 1923, and October 27, 1939. 

Accordingly, he asserted that notices of termination under section 

304(d) should affirmatively assert that the work was originally 

published between these dates.

    The Copyright Office has considered Professor Ochoa's comments 

carefully. The requirement in section 304(d) that the termination right 

under section 304(c) must have expired at the time CTEA took effect was 

not a provision reflected in the proposed regulation. We agree in 

principle with Professor Ochoa's comments on this point. However, we 

disagree with some of the details of his analysis. First, he states 

that the relevant dates are January 1, 1923, and October 27, 1939. In 

fact, although Professor Ochoa is correct in calculating that January 

1, 1923, (the copyright date of the earliest works the terms of which 

were extended by CTEA) is the first of the two relevant dates, he 

appears to be a day late in his calculation of the second date. The 

better reading of section 304(d) is that copyright must have been 

secured no later than October 26, 1939. That is the last date on which 

copyright could have been secured for any work for which the section 

304(c) termination right had already expired by October 27, 1998, the 

effective date of CTEA.

    We calculate this date by noting that termination of a transfer or 

license under section 304(c) may be effected during a period of five 

years commencing "fifty-six years from the date copyright was 

originally secured," 17 U.S.C. 304(c)(3), meaning that termination may 

be effected up to 61 years (56 + 5) after copyright was secured. 

However, in order to effect a termination, an author or an author's 

successor must serve a notice of termination "not less than two years 

before" the effective date, i.e., up to 59 years (61 - 2) after 

copyright was secured. 17 U.S.C. 304(c)(4)(a). Therefore, the 

termination right will have "expired," see 17 U.S.C. 304(d), 59 years 

after copyright was secured. See S. Rep. No. 104-315, at 22 (1996) 

(purpose of section 304(d) was to "provide a revived power of 

termination for individual authors whose right to terminate prior 

transfers and licenses of copyright under section 304(c) has expired, 

provided the author has not previously exercised that right"). On the 

effective date of CTEA, October 27, 1998, an author of a work for which 

copyright had first been secured on October 27, 1939, could still have 

served an effective notice of termination under section 304(c). 

Therefore, there would have been no need to give that author the 

additional right to serve a notice of termination under section 304(d). 

But an author of a work for which copyright had first been secured on 

October 26, 1939, could not have served an effective notice of 

termination on October 27, 1998, because the 59-year deadline for 

serving a notice of termination would have expired at the end of the 

previous day, i.e., on October 26, 1998. Hence, works for which 

copyright was secured between January 1, 1923, and October 26, 1939, 

(and for which the section 304(c) termination right was not exercised) 

are eligible for the section 304(d) termination right.



[[Page 69136]]



    Second, Professor Ochoa states that the requirement is that the 

work was first published between the relevant dates in 1923 and 1939. 

In fact the requirement is somewhat broader: copyright must have been 

secured on or between those dates. See 17 U.S.C. 304(d)(2). Although 

publication with notice was the most common means of securing copyright 

under the Copyright Act of 1909, copyright could also be secured for 

certain unpublished works by registering those works with the Copyright 

Office. See section 11 of the 1909 Act, 17 U.S.C. 12 (repealed 

effective Jan. 1, 1978).

    Although we agree in principle with Professor Ochoa's observation, 

we note that the regulation already requires that the notice of 

termination designate the date on which copyright was originally 

secured. To add to this requirement an additional statement that the 

copyright was secured between January 1, 1923, and October 26, 1939, 

would be redundant. Nevertheless, it would be useful for parties 

involved in a termination under section 304(d) to be aware of this 

requirement. For this reason, we are adding the following sentence to 

the introductory paragraph of Sec.  201.10: "a termination under 

section 304(d) is possible only if no termination was made under 

section 304(c), and federal copyright was originally secured on or 

between January 1, 1923, and October 26, 1939."

    With regard to the proposal to add a statement in the notice of 

termination that the work was not a work made for hire, the Copyright 

Office has decided not to adopt this suggestion. The regulation on 

notice of termination has never required that a notice of termination 

recite all of the statutory requirements underlying termination. The 

current regulation has been in effect since 1977, and no practitioner 

has reported a problem because the notice does not affirmatively state 

that the work being terminated is not a work made for hire. For this 

reason, the Copyright Office has decided not to disrupt settled 

practice in this area.

    In reviewing generally the proposed regulation, the Copyright 

Office has also decided to adopt a number of technical corrections. In 

the proposed regulation, a new subsection (b)(vi) required that notices 

under section 304(d) contain a statement "that termination of rights 

for the extended renewal term has not been previously exercised." This 

provision was intended to apply to the 19-year extended renewal term 

under section 304(c), rather than the 20-year extended renewal term 

under section 304(d). In order to clarify this matter, the language has 

been revised to read: "If termination is made under section 304(d), a 

statement that termination of renewal term rights under section 304(c) 

has not been previously exercised."

    In order to give authors and practitioners sufficient time to learn 

of these new requirements, the effective date of these amendments to 

the regulation is January 1, 2003. Notices of termination served on or 

after January 1, 2003, must comply with the amended regulation. Of 

course, authors and their representatives who serve notices of 

termination prior to that date are encouraged, although not required, 

to include the information that will be required in the amended 

regulation.



List of Subjects in 37 CFR Part 201



    Copyright.



Final Regulation



    In consideration of the foregoing, the Copyright Office is amending 

part 201 of 37 CFR, chapter II 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.

    Section 201.10 also issued under 17 U.S.C. 304.





Sec.  201.4  [Amended]



    2. In Sec.  201.4(a)(1)(v), add "and (d)" after "304(c)."





Sec.  201.10  [Amended]



    3. Section 201.10 is amended as follows:

    a. by adding introductory text before paragraph (a);

    b. by redesignating paragraphs (b)(1)(i) through (v) as (b)(1)(ii) 

through (v) and (vii), respectively;

    c. by adding new paragraphs (b)(1)(i) and (vi);

    d. by removing "paragraph (v)" in newly redesignated paragraph 

(b)(1)(vii) and adding "paragraph (vii)" in its place; and

    e. by revising paragraphs (c)(2), (d)(2), (d)(4) and (e).

    The revisions and additions to Sec.  201.10 read as follows:





Sec.  201.10  Notices of terminations of transfers and licenses 

covering extended renewal term.



    This section covers notices of termination of transfers and 

licenses covering the extended renewal term under sections 304(c) and 

304(d) of title 17, of the United States Code. A termination under 

section 304(d) is possible only if no termination was made under 

section 304(c), and federal copyright was originally secured on or 

between January 1, 1923, and October 26, 1939."

* * * * *

    (b) * * *

    (1) * * *

    (i) If the termination is made under section 304(d), a statement to 

that effect;

* * * * *

    (vi) If termination is made under section 304(d), a statement that 

termination of renewal term rights under section 304(c) has not been 

previously exercised; and

* * * * *

    (c) * * *

    (2) In the case of a termination of a grant executed by one or more 

of the authors of the work, the notice as to any one author's share 

shall be signed by that author or by his or her duly authorized agent. 

If that author is dead, the notice shall be signed by the number and 

proportion of the owners of that author's termination interest required 

under section 304(c) or section 304(d), whichever applies, of title 17, 

U.S.C., or by their duly authorized agents, and shall contain a brief 

statement of their relationship or relationships to that author.

* * * * *

    (d) * * *

    (2) The service provision of either section 304(c) or section 

304(d) of title 17, U.S.C., whichever applies, will be satisfied if, 

before the notice of termination is served, a reasonable investigation 

is made by the person or persons executing the notice as to the current 

ownership of the rights being terminated, and based on such 

investigation:

    (i) If there is no reason to believe that such rights have been 

transferred by the grantee to a successor in title, the notice is 

served on the grantee; or

    (ii) If there is reason to believe that such rights have been 

transferred by the grantee to a particular successor in title, the 

notice is served on such successor in title.

* * * * *

    (4) Compliance with the provisions of paragraphs (d)(2) and (3) of 

this section will satisfy the service requirements of either section 

304(c) or section 304(d) of title 17, U.S.C., whichever applies. 

However, as long as the statutory requirements have been met, the 

failure to comply with the regulatory provisions of paragraph (d)(2) or 

(d)(3) of this section will not affect the validity of the service.

    (e) Harmless errors. (1) Harmless errors in a notice that do not 

materially affect the adequacy of the information required to serve the 

purposes of either section 304(c) or section 304(d) of title



[[Page 69137]]



17, U.S.C., whichever applies, shall not render the notice invalid.

    (2) Without prejudice to the general rule provided by paragraph 

(e)(1) of this section, errors made in giving the date or registration 

number referred to in paragraph (b)(1)(iii) of this section, or in 

complying with the provisions of paragraph (b)(1)(vii) of this section, 

or in describing the precise relationships under paragraph (c)(2) of 

this section, shall not affect the validity of the notice if the errors 

were made in good faith and without any intention to deceive, mislead, 

or conceal relevant information.

* * * * *



    Dated: October 28, 2002.

Marybeth Peters,

Register of Copyrights.



James H. Billington,

The Librarian of Congress.

[FR Doc. 02-28920 Filed 11-14-02; 8:45 am]

BILLING CODE 1410-30-P