[Federal Register: December 2, 2002 (Volume 67, Number 231)]
[Rules and Regulations]
[Page 71477-71479]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 259
[Docket No. 2002-9 CARP]
Filing of Claims for DART Royalty Funds
AGENCY: Copyright Office, Library of Congress.
ACTION: Waiver of regulation.
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SUMMARY: Due to continuing delays in the receipt of mail, the Copyright
Office of the Library of Congress is announcing alternative methods for
the filing of claims to the DART royalty funds for the year 2002. In
order to ensure that their claims are timely received, claimants are
encouraged to file their DART claims online or by fax, utilizing the
special procedures described in this document.
EFFECTIVE DATE: December 2, 2002.
ADDRESSES: If hand delivered, an original and two copies of each claim
should be brought to: Office of the Copyright General Counsel, James
Madison Memorial Building, Room 403, First and Independence Avenue,
SE., Washington, DC 20540. See SUPPLEMENTARY INFORMATION for
information about on-line electronic filing through the Copyright
Office website. Submissions by facsimile should be sent to (202) 252-
3423. If sent by mail, an original and two copies of each claim should
be addressed to: Copyright Arbitration Royalty Panel (CARP), P.O. Box
70977, Southwest Station, Washington, DC 20024.
FOR FURTHER INFORMATION CONTACT: William J. Roberts, Jr., Senior
Attorney, or Susan Grimes, CARP Specialist, P.O. Box 70977, Southwest
Station, Washington, DC 20024. Telephone: (202) 707-8380. Telefax:
(202) 252-3423.
SUPPLEMENTARY INFORMATION:
Background
Chapter 10 of the Copyright Act, 17 U.S.C., places a statutory
obligation on manufacturers and importers of digital audio recording
devices and media ("DART") who distribute the products in the United
States to submit royalty fees to the Copyright Office. 17 U.S.C. 1003.
Distribution of these royalty fees may be made to any interested
copyright owner who has filed a claim and (1) whose sound recording was
distributed in the form of digital musical recordings or analog musical
recordings and (2) whose musical work was distributed in the form of
digital musical recordings or
[[Page 71478]]
analog musical recordings or disseminated to the public in
transmissions. 17 U.S.C. 1006.
Section 1007 provides that claims to these royalty fees must be
filed "[d]uring the first 2 months of each calendar year" with the
Librarian of Congress "in such form and manner as the Librarian of
Congress shall prescribe by regulation." 17 U.S.C. 1007. Part 259 of
title 37 of the Code of Federal Regulations sets forth the procedures
for the filing of claims to the DART royalty funds. Section 259.5
states that in order for a claim to be considered timely filed with the
Copyright Office, the claims either have to be hand delivered to the
Office by the last day in February \1\ or if sent by mail, received by
the Office by the last day in February or bear a January or February
United States Postal Service postmark. 37 CFR 259.5(a). Claims received
after the last day in February will be accepted as timely filed only
upon proof that the claim was placed within the United States Postal
Service during the months of January or February. 37 CFR 259.5(e). A
January or February postmark of the United States Postal Service on the
envelope containing the claim or, if sent by certified mail return
receipt requested, on the certified mail receipt constitutes sufficient
proof that the claim was timely filed.\2\ 37 CFR 259.5(e). The
regulations do not provide for the filing of DART claims by alternative
methods such as on-line submission or facsimile transmission.
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\1\ In those years where the last day of February falls on a
Saturday, Sunday, a holiday, or other nonbusiness day within the
District of Columbia or the Federal Government, claims must be
received by the first business day in March. 37 CFR 259.5(b).
\2\ Claims dated only with a business meter that are received
after the last day in February will not be accepted as having been
timely filed. 37 CFR 259.5(c).
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Last year, due to severe disruptions in the delivery of mail to the
Office caused by threat of possible anthrax contamination, the
Copyright Office waived the regulations requiring that claims bear
"the original signature of the claimant or of a duly authorized
representative of the claimant," 37 CFR 259.3(b), and prohibiting the
filing of by "facsimile transmission," 37 CFR 259.5(d), for the
filing of claims to the DART royalty funds for the year 2001. See 67 FR
5213 (February 5, 2002). While mail delivery to the Office has now
resumed, incoming mail continues to be irradiated and diverted to an
off-site location for treatment, resulting in delays in its delivery.
Consequently, in light of these continuing delays, the Office once
again is waiving Sec. Sec. 259.3(b) and 259.5(d) and allowing the on-
line and facsimile submission of DART claims to the 2002 royalty funds.
The Office has decided not to allow the filing of claims by electronic
mail because lists of joint claimants can now be filed through the
Office's website. The alternative methods set forth in this Notice
apply only to the filing of DART claims for the 2002 royalties which
are due by February 28, 2003, and in no way apply to other filings with
the Office.
This Notice covers only the means by which claims may be accepted
as timely filed; all other filing requirements, such as the content of
claims, remain unchanged, except as noted herein. See 37 CFR part 259.
Acceptable Methods of Filing DART Claims for the Year 2002
Claims to the 2002 DART royalty funds may be submitted as follows:
a. Hand Delivery
In order to best ensure the timely receipt by the Copyright Office
of their DART claims, the Office strongly encourages claimants to
personally deliver their claims by 5 p.m. E.S.T. on February 28, 2003,
to the Office of the Copyright General Counsel, James Madison Memorial
Building, Room 403, First and Independence Avenue, SE., Washington, DC.
Private carriers should not be used for such delivery, as packages
brought in by private carriers are subject to treatment at the off-site
facility before being delivered to the Office and will be deemed
untimely and rejected unless the treated package is received by the
Office of the Copyright General Counsel by 5 p.m. E.S.T. on February
28, 2003. Thus, claims should be hand delivered by the claimant or a
representative of the claimant (i.e., the claimant's attorney or a
member of the attorney's staff).
Claimants hand delivering their claims should note that they must
follow all provisions set forth in 37 CFR part 259.
b. On-line Submission
The Office has devised on-line electronic forms for filing both
single and joint DART claims. Claimants will be able to access and
complete the forms via the Copyright Office website and may submit the
forms electronically as provided in the instructions accompanying the
forms. DART forms will be posted on the Office Web site at
http://www.copyright.gov/carp/dart/index.html.
Claimants filing a joint claim
may list each of their joint claimants directly on the Office's on-line
joint claim form or may submit the list of joint claimants as a file
attachment to the submission page. Lists of joint claimants sent as an
attachment must be in a single file in either Adobe Portable Document
("PDF") format, in Microsoft Word Version 2000 or earlier, in
WordPerfect 9 or earlier, or in ASCII text. There will be a browse
button on the form that will allow claimants to attach the file
containing the list of joint claimants and then to submit the completed
form to the Office. The attachment must contain only the list of names
of joint claimants. Joint claims with attachments containing
information other than the joint claimants' names will be rejected.
The DART forms will be available for use during the months of
January and February. It is critically important to follow the
instructions in completing the forms before submitting them to the
Office. Claims submitted on-line using forms or formats other than
those specified in this Notice will not be accepted by the Office.
Claims filed on-line must be received by the Office no later than 11:59
p.m. E.S.T. on February 28, 2003. Specifically, the completed
electronic forms must be received in the Office's server by that time.
Any claim received after that time will be considered as untimely
filed. Claimants will receive an electronic mail message in response
stating that the Office has received their submission. Therefore,
claimants utilizing this filing option are required to provide an e-
mail address. Claimants submitting their claims on-line are strongly
encouraged to send their claim no later than February 27, 2003, in
order to better ensure timely receipt by the Office.
When filing claims on-line, all provisions set forth in 37 CFR part
259 apply except Sec. 259.3(b), which requires the original signature
of the claimant or of the claimant's duly authorized representative on
the claim. The Office is waiving this provision for this filing period
because at this time the Office is not equipped to receive and process
electronic signatures.
c. Facsimile
Claims may be filed with the Office via facsimile transmission and
such filings must be sent to (202) 252-3423. Claims filed in this
manner must be received in the Office no later than 5 p.m. E.S.T. on
February 28, 2003. The fax machine will be disconnected at that time.
Claims sent to any other fax number will not be accepted by the Office.
When filing claims via facsimile transmission, claimants must
follow all provisions set forth in 37 CFR part 259 with the exception
of Sec. 259.5(d), which prohibits the filing of claims by
[[Page 71479]]
facsimile transmission. The Office is waiving this provision at this
time in order to assist claimants in the timely filing of their claims.
d. By Mail
Section 259.5(a)(2) directs claimants filing their claims by mail
to send the claims to the Copyright Arbitration Royalty Panel, P.O. Box
70977, Southwest Station, Washington, DC 20024. Claimants electing to
send their claims by mail are encouraged to send their claims by
certified mail return receipt requested, to have the certified mail
receipt (PS Form 3800) stamped by the United States Postal Service, and
to retain the certified mail receipt in order to provide proof of
timely filing, should the claim reach the Office after the last day in
February. In the event there is a question as to whether the claim was
deposited with the United States Postal Service during the months of
January or February, the claimant must produce the certified mail
receipt (PS Form 3800) which bears a United States Postal Service
postmark, indicating an appropriate date.
Because of delays in mail delivery, claimants are urged not to use
the mail as a means of filing their claims to the 2002 DART royalty
funds. While the Office is not prohibiting the filing of claims by
mail, those who do so assume the risk that their claim will not reach
the Office in a timely manner, and/or that the mail, when received by
the Office, will be damaged. Claims sent by mail should be addressed in
accordance with Sec. 259.5(a)(2), and the Office again strongly
encourages the claimant to send the claim by certified mail return
receipt requested, to have the certified mail receipt (PS Form 3800)
stamped by the United States Postal Service, and to retain the
certified mail receipt, as it constitutes the only acceptable proof of
timely filing of the claim. Claims dated only with a business meter
that are received by the Office after February 28, 2003, will be
rejected as being untimely filed.
When filing claims by this method, claimants must follow all
provisions set forth in 37 CFR part 259.
Waiver of Regulation
The regulations governing the filing of DART claims require "the
original signature of the claimant or of a duly authorized
representative of the claimant," 37 CFR 259.3(b), and do not allow
claims to be filed by "facsimile transmission," 37 CFR 259.5(d). This
document, however, waives these provisions as set forth herein solely
for the purpose of filing claims to the 2002 DART royalties. The Office
is not, and indeed cannot, waive the statutory deadline for the filing
of DART claims. See, United States v. Locke, 471 U.S. 84, 101 (1985).
Thus, claimants are still required to file their claims by February 28,
2003.
Waiver of an agency's rules is "appropriate only if special
circumstances warrant a deviation from the general rule and such
deviation will serve the public interest." Northeast Cellular
Telephone Company v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990); see
also, Wait Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), cert. denied,
409 U.S. 1027 (1972). Under ordinary circumstances, the Office is
reluctant to waive its regulations. However, the continuing delays in
the delivery of the mail constitutes a special circumstance which has
forced the Office to deviate from its usual mail processing procedures.
Thus, given the delays in mail delivery, the Office believes that the
public interest will best be served by waiving, for this filing period,
the requirement that DART claims bear the original signature of the
claimant or of a duly authorized representative of the claimant, when,
and only when, such claim is filed on-line through the Office's
website. See 67 FR at 5214.
The Office cannot waive the statutory deadline set forth in 17
U.S.C. 1007 and accept claims filed after February 28, 2003. See Locke,
supra. Therefore, in order to serve the public interest the Office is
providing claimants with alternative methods of filing, in addition to
those set forth in the regulations, in order to assist them in timely
filing their claims. By allowing claims to be filed on-line and by
facsimile transmission, the Office is affording to all claimants an
equal opportunity to meet the statutory deadline.
Dated: November 26, 2002.
David O. Carson,
General Counsel.
[FR Doc. 02-30445 Filed 11-29-02; 8:45 am]
BILLING CODE 1410-31-P