[Federal Register: October 27, 2005 (Volume 70, Number 207)]
[Rules and Regulations]
[Page 61905-61908]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27oc05-5]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 202
[Docket No. RM 2005-9]
Preregistration of Certain Unpublished Copyright Claims
AGENCY: Library of Congress, Copyright Office.
ACTION: Interim regulation.
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SUMMARY: Pursuant to the Artists' Rights and Theft Prevention Act of
2005, the Copyright Office is publishing an interim regulation
governing the preregistration of unpublished works that are being
prepared for commercial distribution in classes of works that the
Register of Copyrights has determined have had a history of pre-release
infringement.
EFFECTIVE DATE: November 15, 2005.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
Charlotte Douglass, Principal Legal Advisor, P.O. Box 70400,
Washington, DC 20024-0400, Telephone: (202) 707-8380. Telefax: (202)
707-8366.
SUPPLEMENTARY INFORMATION: On April 27, 2005, President Bush signed the
Family Entertainment and Copyright Act (``FECA''). Pub. L. No. 109-9,
119 Stat. 218. Title I of FECA is the Artists' Rights and Theft
Prevention Act of 2005, or ``ART Act,'' which among other things
addresses copyright infringement of works committed prior to their
authorized commercial distribution, or pre-release infringement.
Section 104 directs the Copyright Office to conduct a rulemaking
proceeding to establish a procedure for preregistration of unpublished
works that are being prepared for commercial distribution.
Specifically, Section 104 provides that ``Not later than 180 days
after the date of enactment of this subsection, the Register of
Copyrights shall issue regulations to establish procedures for
preregistration of a work that is being prepared for commercial
distribution and has not been published.'' 17 U.S. C. 408(f)(1).
Preregistration is a new procedure in the Copyright Office that permits
such an action to serve as a place-holder for limited purposes -
notably where a copyright owner needs to sue for infringement while a
work is still being prepared for commercial release.
Congress also assigned the Register to determine which works are
eligible for preregistration by directing that ``the regulations
established under paragraph (1) shall permit preregistration for any
work that is in a class of works that the Register determines has had a
history of infringement prior to authorized commercial distribution.''
17 U.S.C. 408(f)(2). Thus, falling in one or more of the classes so
determined by the Register is a precondition to eligibility for
preregistration, and applications for works that do not appear to fall
within these classes should not be entertained.
On July 22, 2005, the Register of Copyrights initiated this
rulemaking
[[Page 61906]]
proceeding pursuant to the ART Act's Section 408(f)(2) with publication
of a Notice of Proposed Rulemaking (``NOPR''). 70 FR 42286. The
Copyright Office received ten initial comments and five reply comments
related to proposals of one or more classes of works or to general
preregistration procedure. The Office also received a large number of
comments in response to a Supplemental Notice of Proposed Rulemaking
published August 4, 2005, which sought information relating to browser
compatibility for those expected to file the electronic preregistration
form. The Office made this inquiry after learning that persons
attempting to use the Office's new online preregistration system, which
was still in development, may have difficulties if they used web
browsers other then Microsoft Internet Explorer.
In order to preregister, applicants must use the Office's online
preregistration system, which will be accessible from the Copyright
Office's home page at http://www.copyright.gov. While the Office is
attempting to address browser compatibility issues, initially some
applicants may experience difficulties if they are using browsers other
than Internet Explorer. For applicants who are unable to use the online
preregistration system, information will be available on the Copyright
Office website on how to preregister their works.
In order to comply with the ART Act's requirement that regulations
to establish procedures for preregistration be issued by October 24,
the Office is now issuing the following interim regulations. It is
anticipated that final regulations, which will be identical or very
similar to the interim regulations, will be published within the next
few weeks, along with a more detailed discussion of the comments
received in response to the notice of proposed rulemaking and of the
Office's responses to those comments. For further information in the
meantime, please refer to the July 22 notice of proposed rulemaking, as
supplemented by the following brief explanation.
The Register's determination today adopts the liberalized classes
named and discussed below. The Register has now carefully reviewed the
record in this rulemaking proceeding to determine the classes of works
that have had a history of infringement prior to authorized commercial
distribution. Based on that review of the comments, it appears that the
case has been made for eligibility for preregistration of the following
classes of works upon their fulfillment of the conditions specified in
37 CFR 202.16:
(i) Motion pictures;
(ii) Sound recordings;
(iii) Musical compositions;
(iv) Literary works being prepared for publication in book form;
(v) Computer programs (including videogames); and
(vi) Advertising or marketing photographs.
Many copyright owners urged that much or all of the information
provided on applications for preregistration be maintained as
confidential records by the Copyright Office. The Register cannot
accept the proposition that the public should be denied access to the
preregistration records. As an office of public record administering a
system of registration and recordation the purpose of which is to
provide information regarding copyright ownership to the public, the
Copyright Office is not disposed to receive and maintain private
information. The Office is subject to the Freedom of Information Act
(``FOIA''), and it may or may not be able to refuse release of records
based on applicable FOIA exceptions. To preclude accessibility to
information related to a preregistration is inconsistent with the very
concept of preregistration and registration systems.
The Office does not believe that the alleged risks of making such
information public pose serious danger to copyright owners. The
information required to preregister a work need not be detailed and
need not include confidential information. To the extent that a title
is demanded, it is sufficient to provide a ``working title''; moreover,
the risk of cybersquatting can easily be mitigated if the copyright
owner obtains the applicable domain name prior to or simultaneously
with preregistration. Information such as anticipated release dates is
not immutable; it should be understood that when a preregistration made
at an early stage in a work's preparation states an anticipated date of
release, that date is at best a prediction and is hardly a binding
commitment.
Accordingly, the preregistration record will be a public record,
and information from the preregistration records will be available on
the Copyright Office Web site.\1\
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\1\ Due to the ongoing conversion of the online copyright
catalog to a Voyager database, preregistration records will probably
not be available online until sometime in December.
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The Office has abandoned its proposal that, in order to be eligible
for preregistration, a work must already be subject to a contract for
distribution of the work with an established distributor of works.
However, a person preregistering a work must certify, under penalty of
law, that the work is in fact being prepared for commercial
distribution and that the applicant has a reasonable expectation that
the work will be commercially distributed to the public.
Commenters also asserted that distribution is already extensively
occurring online, and in some genres, exclusively so. Therefore, the
Office will not limit the coverage of this regulation to work being
prepared for commercial distribution in physical format. Any class of
work that the Register determines has had a history of pre-release
infringement may be preregistered without regard to whether the work is
intended to be distributed in physical formats or is intended for
online distribution.
Additional information relating to preregistration may be found in
the help pages of the Office's online preregistration system, which
will be accessible from the Copyright Office's home page at http://www.copyright.gov.
The online preregistration system, which is in its
final stages of preparation, will go online, and preregistration will
be available, on November 15.
List of Subjects in 37 CFR Part 202
Claims, Copyright, Registration requirements.
Interim Regulation
0
In consideration of the foregoing, the Copyright Office issues this
interim rule amending part 202 of 37 CFR, chapter II, in the manner set
forth below:
PART 202 - PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT
0
1. The authority citation for part 202 is revised to read as follows:
Authority: 17 U.S.C. 408(f), 702
0
2. The heading of Part 202 is revised to read as set forth above.
0
3. A new Sec. 202.16 is added to read as follows:
Sec. 202.16 Preregistration of copyrights.
(a) General. This section prescribes rules pertaining to the
preregistration of copyright claims in works eligible for
preregistration under Section 408(f) of 17 U.S.C.
(b) Definitions. For the purposes of this section -
(1) A work is in a class of works that the Register of Copyrights
has determined has had a history of infringement prior to authorized
commercial release if it falls within one of the following classes of
works:
[[Page 61907]]
(i) Motion pictures;
(ii) Sound recordings;
(iii) Musical compositions;
(iv) Literary works being prepared for publication in book form;
(v) Computer programs (including videogames); or
(vi) Advertising or marketing photographs.
(2) A work is being prepared for commercial distribution if:
(i) The claimant, in a statement certified by the authorized
preregistering party, has a reasonable expectation that the work will
be commercially distributed to the public; and
(ii) Preparation of the work has commenced and at least some
portion of the work has been fixed in a tangible medium of expression,
as follows:
(A) For a motion picture, filming of the motion picture must have
commenced;
(B) For a sound recording, recording of the sounds must have
commenced;
(C) For a musical composition, at least some of the musical
composition must have been fixed either in the form of musical notation
or in a copy or phonorecord embodying a performance of some or all of
the work;
(D) For a literary work being prepared for publication in book
form, the actual writing of the text of the work must have commenced;
(E) For a computer program, at least some of the computer code
(either source code or object code) must have been fixed; and
(F) For an advertising or marketing photograph, the photograph (or,
in the case of a group of photographs intended for simultaneous
publication, at least one of the photographs) must have been taken.
(3) A work eligible for preregistration is a work that is:
(i) Unpublished;
(ii) Being prepared for commercial distribution; and
(iii) In a class of works that the Register of Copyrights has
determined has had a history of infringement prior to authorized
commercial release.
(c) Preregistration. (1) General. A work eligible for
preregistration may be preregistered by submitting an application and
fee to the Copyright Office pursuant to the requirements set forth in
this section.
(2) Works excluded. Works that are not copyrightable subject matter
under title 17 of the U.S. Code may not be preregistered in the
Copyright Office.
(3) Application form. An application for preregistration is made
using Electronic Form PRE. The application must be submitted
electronically on the Copyright Office website at: http://www.copyright.gov
.
(4) Preregistration as a single work. For the purpose of
preregistration on a single application and upon payment of a single
preregistration fee, all copyrightable elements that are otherwise
recognizable as self-contained works, that are to be included and first
published in a single unit of publication, and in which the copyright
claimant is the same, shall be considered a single work eligible for
preregistration.
(5) Fee. (i) Amount. The filing fee for preregistration is $100.
(ii) Method of payment. (A) Copyright Office deposit account. The
Copyright Office maintains a system of Deposit Accounts for the
convenience of those who frequently use its services and for those who
file applications electronically. The system allows an individual or
firm to establish a Deposit Account in the Copyright Office and to make
advance deposits in that account. Deposit Account holders can charge
preregistration fees against the balance in their accounts instead of
using credit cards for each request of service. For information on
Deposit Accounts, please download a copy of Circular 5, ``How to Open
and Maintain a Deposit Account in the Copyright Office,'' or write the
Register of Copyrights, Copyright Office, Library of Congress,
Washington, D.C. 20559.
(B) Credit cards, debit cards and electronic funds transfer. The
online preregistration filing system will provide options for payment
by means of credit or debit cards and by means of electronic funds
transfers. Applicants will be redirected to the Department of
Treasury's Pay.gov website to make payments with credit or debit cards,
or directly from their bank accounts by means of ACH debit
transactions.
(C) No refunds. The preregistration filing fee is not refundable.
(6) Description. No deposit of the work being preregistered should
be submitted with an application for preregistration. The
preregistration applicant should submit a detailed description, of not
more than 2,000 characters (approximately 330 words), of the work as
part of the application. The description should be based on information
available at the time of the application sufficient to reasonably
identify the work. Generally, the Copyright Office will not review
descriptions for adequacy, but in an action for infringement of a
preregistered work, the court may evaluate the adequacy of the
description to determine whether the preregistration actually describes
the work that is alleged to be infringed, taking into account the
information available to the applicant at the time of preregistration
and taking into account the legitimate interest of the applicant in
protecting confidential information.
(i) For motion pictures, such a description should include the
following information to the extent known at the time of filing: the
subject matter, a summary or outline, the director, the primary actors,
the principal location of filming, and any other information that would
assist in identifying the particular work being preregistered.
(ii) For sound recordings, the identifying description should
include the following information to the extent known at the time of
filing: the subject matter of the work or works recorded, the performer
or performing group, the genre of the work recorded (e.g., classical,
pop, musical comedy, soft rock, heavy metal, gospel, rap, hip-hop,
blues, jazz), the titles of the musical compositions being recorded,
the principal recording location, the composer(s) of the recorded
musical compositions embodied on the sound recording, and any other
information that would assist in identifying the particular work being
preregistered.
(iii) For musical compositions, the identifying description should
include the following information to the extent known at the time of
filing: the subject matter of the lyrics, if any, the genre of the work
(for example, classical, pop, musical comedy, soft rock, heavy metal,
gospel, rap, hip-hop, blues, jazz), the performer, principal recording
location, record label, motion picture, or other information relating
to any sound recordings or motion pictures that are being prepared for
commercial distribution and will include the musical composition, and
any other detail or characteristic that may assist in identifying the
particular musical composition.
(iv) For literary works in book form, the identifying description
should include to the extent known at the time of filing: the genre of
the book, e.g., biography, novel, history, etc., and should include a
brief summary of the work including, the subject matter (e.g., a
biography of President Bush, a history of the war in Iraq, a fantasy
novel); a description (where applicable) of the plot, primary
characters, events, or other key elements of the content of the work;
and any other salient characteristics of the book, e.g., whether it is
a later edition or revision of a previous work, as well as any other
detail which may assist in identifying the literary work in book form.
[[Page 61908]]
(v) For computer programs (including videogames), the identifying
description should include to the extent known at the time of filing,
the nature, purpose and function of the computer program, including the
programming language in which it is written, any particular
organization or structure in which the program has been created; the
form in which it is expected to be published, e.g. as an online-only
product; whether there have been previous versions (and identification
of such previous versions); the identities of persons involved in the
creation of the computer program; and, if the work is a videogame, also
describe the subject matter of the videogame and the overall object,
goal or purpose of the game, its characters, if any, and the general
setting and surrounding found in the game.
(vi) For advertising or marketing photographs, the description
should include the subject matter depicted in the photograph or
photographs, including information such as the particular product,
event, public figure, or other item or occurrence which the photograph
is intended to advertise or market. To the extent possible and
applicable, the description for photographs should give additional
details which will assist in identifying the particular photographs,
such as the party for whom such advertising photographs are taken; the
approximate time periods during which the photographs are taken; the
approximate number of photos which may be included in the grouping; any
events associated with the photographs; and the location and physical
setting or surrounding depicted in the photographs. The description may
also explain the general presentation, e.g., the lighting, background
scenery, positioning of elements of the subject matter as it is seen in
the photographs, and should provide any locations and events, if
applicable, associated with the photographs.
(7) Review of preregistration information. The Copyright Office
will conduct a limited review of applications for preregistration, in
order to ascertain whether the application describes a work that is in
a class of works that the Register of Copyrights has determined has had
a history of infringement prior to authorized commercial release.
However, a work will not be preregistered unless an applicant has
provided all of the information requested on the application and has
certified that all of the information provided on the application is
correct to the best of the applicant's knowledge.
(8) Certification. The person submitting an application for
preregistration must certify on the application that he or she is the
author, copyright claimant, or owner of exclusive rights, or the
authorized agent of the author, copyright claimant, or owner of
exclusive rights, of the work submitted for this preregistration; that
the information given in this application is correct to the best of his
or her knowledge; that the work is being prepared for commercial
distribution; and that he or she has a reasonable expectation that the
work will be commercially distributed to the public.
(9) Effective date of preregistration. The effective date of a
preregistration is the day on which an application and fee for
preregistration of a work, which the Copyright Office later notifies
the claimant has been preregistered or which a court of competent
jurisdiction has concluded was acceptable for preregistration, have
been received in the Copyright Office.
(10) Notification of preregistration. Upon completion of the
preregistration, the Copyright Office will provide the claimant
official notification by email of the preregistration.
(11) Certification of preregistation. A certified copy of the
official notification may be obtained in physical form from the
Certification and Documents Section of the Information and Reference
Division at the address stated in Sec. 201.1(a)(3) of this chapter.
(12) Public record of preregistration. The preregistration record
will also be available to the public on the Copyright Office website,
http://www.copyright.gov.
(13) Effect of preregistration. Preregistration of a work offers
certain advantages to a copyright owner pursuant to 17 U.S.C. 408(f),
411 and 412. However, preregistration of a work does not constitute
prima facie evidence of the validity of the copyright or of the facts
stated in the application for preregistration or in the preregistration
record. The fact that a work has been preregistered does not create any
presumption that the Copyright Office will register the work upon
submission of an application for registration.
(14) Petition for recognition of a new class of works. At any time
an interested party may petition the Register of Copyrights for a
determination as to whether a particular class of works has had a
history of copyright infringement prior to authorized release that
would justify inclusion of that class of works among the classes of
works eligible for preregistration.
Dated: October 19, 2005
Marybeth Peters,
Register of Copyrights.
Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 05-21381 Filed 10-26-05; 8:45 am]
BILLING CODE 1410-30-S