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Rule2021-17696

Copyright Alternative in Small-Claims Enforcement (“CASE”) Act Regulations: Expedited Registration and FOIA

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Published

August 18, 2021

Effective

September 17, 2021

Issuing agencies

Library of CongressCopyright Office, Library of Congress

Abstract

The U.S. Copyright Office is amending its regulations to establish a new expedited registration option under the Copyright Alternative in Small-Claims Enforcement Act of 2020 and to provide a technical update to the Office's Freedom of Information Act regulations. To qualify for this expedited registration option, the work(s) being registered must be the subject of a claim or counterclaim before the Copyright Claims Board.

Full Text

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<title>Federal Register, Volume 86 Issue 157 (Wednesday, August 18, 2021)</title>
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[Federal Register Volume 86, Number 157 (Wednesday, August 18, 2021)]
[Rules and Regulations]
[Pages 46119-46123]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-17696]

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LIBRARY OF CONGRESS

37 CFR Parts 201, 203 and 221

[Docket No. 2021-2]

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Final rule.

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SUMMARY: The U.S. Copyright Office is amending its regulations to
establish a new expedited registration option under the Copyright
Alternative in Small-Claims Enforcement Act of 2020 and to provide a
technical update to the Office's Freedom of Information Act
regulations. To qualify for this expedited registration option, the
work(s) being registered must be the subject of a claim or counterclaim
before the Copyright Claims Board.

DATES: Effective September 17, 2021.

FOR FURTHER INFORMATION CONTACT: Kevin R. Amer, Acting General Counsel
and Associate Register of Copyrights, by email at <a href="/cdn-cgi/l/email-protection#d7bcb6bab2a597b4b8a7aea5beb0bfa3f9b0b8a1"><span class="__cf_email__" data-cfemail="7318121e160133101c030a011a141b075d141c05">[email&#160;protected]</span></a>;
John R. Riley, Assistant General Counsel, by email at
<a href="/cdn-cgi/l/email-protection#cba1b9a2a78ba8a4bbb2b9a2aca3bfe5aca4bd"><span class="__cf_email__" data-cfemail="b7ddc5dedbf7d4d8c7cec5ded0dfc399d0d8c1">[email&#160;protected]</span></a>, or Brad A. Greenberg, Assistant General Counsel, by
email at <a href="/cdn-cgi/l/email-protection#8be9f9ecf9cbe8e4fbf2f9e2ece3ffa5ece4fd"><span class="__cf_email__" data-cfemail="9cfeeefbeedcfff3ece5eef5fbf4e8b2fbf3ea">[email&#160;protected]</span></a>. Each can be contacted by telephone at
(202) 707-8350.

SUPPLEMENTARY INFORMATION:

I. Background

A. Statutory Framework

On December 27, 2020, the President signed into law the Copyright
Alternative in Small-Claims Enforcement (``CASE'') Act of 2020.\1\ The
CASE Act establishes the Copyright Claims Board (``CCB'' or ``Board''),
a voluntary, alternative forum to federal court for parties to seek
resolution of copyright disputes that have a low economic value
(``small copyright claims'').\2\ The creation of the CCB does not
displace or limit the ability to bring small copyright claims in
federal court, but rather provides a more accessible alternative
forum.\3\ The CCB has authority to hear copyright infringement claims,
claims seeking a declaration of noninfringement, and misrepresentation
claims under section 512(f) of title 17.\4\ Participation before the
CCB is voluntary for all parties,\5\ and all determinations are non-
precedential.\6\ The Copyright Office is in the process of standing up
the CCB and intends to promulgate several operational and procedural
rules.\7\ Congress directed the CCB to begin operations by December 27,
2021, though the Register may, for good cause, extend that deadline by
not more than 180 days.\8\
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\1\ Public Law 116-260, sec. 212, 134 Stat. 1182, 2176 (2020).
\2\ See, e.g., H.R. Rep. No. 116-252, at 18-20 (2019); S. Rep.
No. 116-105, at 7-8 (2019). Note, the CASE Act legislative history
cited is for H.R. 2426 and S. 1273, the CASE Act of 2019, a bill
nearly identical to the CASE Act of 2020. See H.R. 2426, 116th Cong.
(2019); S. 1273, 116th Cong. (2019). In developing the CASE Act,
Congress drew on model legislation in the Office's 2013 policy
report, Copyright Small Claims, <a href="https://www.copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf">https://www.copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf</a> (``Copyright Small
Claims''). Congress also incorporated the Office's report and
supporting materials into the statute's legislative history. H.R.
Rep. No. 116-252, at 19; S. Rep. No. 116-105, at 2.
\3\ H.R. Rep. No. 116-252, at 17; S. Rep. No. 116-105, at 2-3,
9.
\4\ 17 U.S.C. 1504(c)(1)-(3). The CCB cannot issue injunctive
relief but can require that an infringing party cease or mitigate
its infringing activity in the event such party agrees and the
agreement is reflected in the proceeding's record. Id. at
1504(e)(2)(A)(i), (e)(2)(B). This provision also applies to parties
making knowing material misrepresentations under section 512(f). Id.
at 1504(e)(2)(A)(ii).
\5\ See id. at 1504(a); H.R. Rep. No. 116-252, at 17, 21; S.
Rep. No. 116-105, at 3, 11.
\6\ H.R. Rep. No. 116-252, at 21-22, 33; S. Rep. No. 116-105, at
14.
\7\ See 86 FR 16156 (Mar. 26, 2021).
\8\ Public Law 116-260, sec. 212(d), 134 Stat. at 2199.
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Consistent with the overall goal of providing a cost-effective,
streamlined alternative to federal litigation, the CASE Act includes
provisions addressing the Copyright Act's registration prerequisite to
filing an infringement action. In general, the owner of the copyright
in a United States work may not initiate an infringement suit until the
Office has issued or refused to issue a copyright registration.\9\
Additionally, the Copyright Act provides that in most instances, for a
copyright owner to qualify for an award of attorneys' fees or statutory
damages, the infringed work must have been registered on or before the
date the infringement commenced, unless registration is made within
three months after the work's first publication.\10\ In considering the
challenges facing those involved in

[[Page 46120]]

small copyright claims, the Office noted that while copyright
registration ``helps to produce a valuable public record of American
creativity as well as material information to parties in litigation,''
at times it may also act as ``a procedural hurdle for copyright
claimants . . . who may not be aware of the repercussions of not
registering in a timely manner.'' \11\ Congress similarly noted that
``many small claimants currently do not register their works because
they do not expect to be able to enforce their rights in federal
court.'' \12\
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\9\ 17 U.S.C. 411(a) (``[N]o civil action for infringement of
the copyright in any United States work shall be instituted until
preregistration or registration of the copyright claim has been made
in accordance with this title'' or ``the deposit, application, and
fee required for registration have been delivered to the Copyright
Office in proper form and registration has been refused.''); Fourth
Estate Pub. Benefit Corp. v. <a href="http://Wall-Street.com">Wall-Street.com</a>, LLC, 139 S. Ct. 881,
886 (2019) (holding that ``registration occurs, and a copyright
claimant may commence an infringement suit, when the Copyright
Office registers a copyright'').
\10\ 17 U.S.C. 412.
\11\ Copyright Small Claims at 16-17; see also H.R. Rep. No.
116-252, at 25-26.
\12\ H.R. Rep. No. 116-252, at 26.
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The CASE Act addresses these concerns by allowing a party to file
an infringement claim with the CCB once ``a completed application, a
deposit, and the required fee for registration'' have been delivered to
the Office.\13\ The legislative history characterizes this approach as
taking ``a more liberal attitude towards the commencement of a
proceeding while registration of a work is in progress.'' \14\ But
before the CCB renders a decision in any infringement dispute, the CASE
Act mandates that the work at issue must be registered by the Office,
and the other parties in the proceeding must have an opportunity to
address the registration certificate.\15\ Recognizing that some
infringement claims may involve works for which a registration
application has been submitted, but for which the Office has not yet
rendered a decision, the statute directs the CCB to hold such
proceedings in abeyance.\16\ If the Office refuses the registration,
the CCB action will be dismissed without prejudice.\17\ The CCB also
may dismiss an action without prejudice if it has been held in abeyance
for at least one year, upon providing thirty days written notice to the
parties.\18\ As the legislative history explains, ``[t]his process is
intended to strike a balance between still encouraging timely
registration of works with the promise of a higher damages caps [in
federal court] with the reality that smaller creators may have numerous
understandable reasons for not routinely engaging in the registration
process.'' \19\
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\13\ 17 U.S.C. 1505(a)(1).
\14\ H.R. Rep. No. 116-252, at 25.
\15\ 17 U.S.C. 1505(b)(1).
\16\ Id. at 1505(b)(2).
\17\ Id. at 1505(b)(3); see also Copyright Small Claims at 108-
09.
\18\ 17 U.S.C. 1505(b)(2).
\19\ H.R. Rep. No. 116-252, at 26.
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To ensure that the work at issue in a CCB proceeding is registered
in a timely manner before the CCB issues a determination, the CASE Act
directs the Office to ``establish regulations allowing the Copyright
Office to make a decision, on an expedited basis, to issue or deny
copyright registration for an unregistered work that is at issue before
the Board.'' \20\
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\20\ 17 U.S.C. 1505(d).
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The CASE Act also limits the materials related to a CCB proceeding
that must be disclosed under the Freedom of Information Act (``FOIA'').
Subject to certain conditions and exceptions, FOIA requires agencies to
make their records available to the public either proactively or in
response to a request.\21\ The CASE Act provides that ``[a]ll
information relating to proceedings of the Copyright Claims Board under
this chapter is exempt from disclosure'' under FOIA, except for
``determinations, records, and information'' that are published on the
Office's website and that relate to a CCB final determination.\22\
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\21\ See 5 U.S.C. 552.
\22\ 17 U.S.C. 1506(t)(4).
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B. Proposed Rule and Public Comment

On April 26, 2021, the Office issued a notice of proposed
rulemaking (the ``NPRM'') requesting public comment on proposed
processes for small claims expedited registration and a conforming
amendment for disclosures under FOIA.\23\ The NPRM proposed to allow a
claimant or counterclaimant with a pending copyright registration
application to seek expedited review of that application by making such
a request and paying the requisite fee, but only after he or she
submitted the completed registration application and the respondent
either opted in to the CCB proceeding or did not timely opt out. The
proposed rule would not enable the CCB to proceed with a dispute
involving a work for which registration is still pending or has been
denied. Additionally, the NPRM proposed an amendment to the Office's
FOIA regulations to reflect that, as required by the CASE Act, only
those CCB ``determinations, records, and information'' that are
published on the Office's website and that relate to a CCB final
determination are subject to disclosure under FOIA.
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\23\ 86 FR 21990 (Apr. 26, 2021). Comments received in response
to the April 2021 NPRM are available at <a href="https://www.regulations.gov/document/COLC-2021-0002-0001/comment">https://www.regulations.gov/document/COLC-2021-0002-0001/comment</a>. References to comments
responding to the April 2021 NPRM are by party name (abbreviated
where appropriate), followed by ``NPRM Comments.''
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The Office received four comments in response to the NPRM. The
Office had asked stakeholders to try to submit joint comments where
they had agreement, and one set of comments, submitted by the Copyright
Alliance, was joined by twenty separate stakeholder groups.\24\ One of
those organizations, the National Press Photographers Association, also
submitted separate comments. Comments were also filed by the Science
Fiction and Fantasy Writers of America, Inc. (``SFWA'') and by Verizon.
On the whole, the comments were broadly supportive of the proposed rule
and conforming amendment, while providing substantive feedback on some
specific provisions. Verizon's comments were generally critical of the
creation of CCB as an institution and raised concerns about possible
abusive actions by claimants.
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\24\ The groups joining the Copyright Alliance are ACT [verbar]
The App Association, American Photographic Artists, American Society
for Collective Rights Licensing, Inc., American Society of Media
Photographers, Inc., The Authors Guild, CreativeFuture, Digital
Media Licensing Association, Graphic Artists Guild, Inc.,
Independent Book Publishers Association, Music Artists Coalition,
Music Creators North America, National Music Council of the United
States, National Press Photographers Association, North American
Nature Photography Association, Professional Photographers of
America, The Recording Academy, Screen Actors Guild-American
Federation of Television and Radio Artists, Society of Composers &
Lyricists, Songwriters Guild of America, Inc., and Songwriters of
North America.
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Having carefully considered each of the comments, the Office now
issues a final rule that closely follows the proposed rule, with
certain modifications. First, the final rule adjusts the language
pertaining to the initiation of an expedited registration request to
provide that such a request may be made only after the proceeding has
become active. Second, the final rule clarifies that the CCB will
provide notice to all parties to a proceeding when a proceeding is
dismissed without prejudice after being held in abeyance for more than
one year pending a registration decision. Third, the final rule
provides additional flexibility as to the methods of payment that may
be accepted for small claims expedited registration. Fourth, the final
rule specifies the standard governing denials of requests for small
claims expedited registration. Finally, the final rule uses the word
``request'' rather than ``claim'' to refer to the action a claimant or
counterclaimant takes to initiate small claims expedited registration,
to remove possible confusion with other uses of the term ``claim.''
In the NPRM, the Office noted that it anticipated publishing this
rule as an interim rule.\25\ Because, however, the public has had an
opportunity to comment on the proposed rule, and in light of the
limited number of comments received, the Office does not believe

[[Page 46121]]

that additional written comments are necessary at this time.\26\ The
Office therefore is publishing the rule as final. As with other CCB
regulations, the Office will carefully monitor the operation of these
procedures and welcomes CCB participants' feedback as to whether
further adjustments should be considered in the future.
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\25\ 86 FR at 21992.
\26\ Interim final rules are a common practice among federal
agencies, often adopted when there is a need to promulgate a rule
before comments can be received, considered, and addressed. See 5
U.S.C. 553(b)(3)(B) (good-cause exception to notice-and-comment
requirements under Administrative Procedure Act).
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II. Final Rule

A. Small Claims Expedited Registration

The NPRM outlined several regulatory requirements to govern the
expedited registration process. Commenters were generally supportive of
the regulation's proposed framework and substance. Recommended
amendments to the proposed rule were limited to the matters discussed
below.
1. Requesting Small Claims Expedited Registration
Under the CASE Act, a claim or counterclaim may be asserted before
the CCB where ``the legal or beneficial owner of the copyright has
first delivered a completed application, a deposit, and the required
fee for registration of the copyright to the Copyright Office,'' and
``a registration certificate has either been issued or has not been
refused.'' \27\ The small claims expedited registration provision is
designed to reduce the time required for examination of a party's
application and, in doing so, streamline claim resolution before the
CCB. The NPRM provided that small claims expedited registration may be
requested only after a claimant or counterclaimant ``has submitted a
completed registration application and the respondent has either opted
in or has not timely opted out'' of the CCB proceeding. This
requirement aimed to ``ensure that registration applicants do not
invoke the CCB to receive special handling treatment at a discounted
rate when not genuinely intending to pursue their claim through the
CCB.'' \28\
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\27\ 17 U.S.C. 1505(a).
\28\ 86 FR at 21992-93.
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The Copyright Alliance et al. objected to the inclusion of the
phrase ``opting in,'' noting that the statute does not contain that
language and that it therefore could cause confusion.\29\ To address
that concern, the final rule amends the proposed rule, providing that a
claimant or counterclaimant may request small claims expedited
registration only after it ``has submitted a completed registration
application and the proceeding has become active.'' The revision
reflects that there are several ways for a proceeding to become active,
including when a respondent fails to timely opt out or the case is
referred from a district court with consent of the parties.\30\
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\29\ Copyright Alliance et al. NPRM Comments at 7.
\30\ See 17 U.S.C. 1506(i), 1509(b). The Office also removed the
word ``both'' from before ``completed an application'' because only
one action--completing the registration application--is taken by the
claimant or counterclaimant. This change does not alter the
substance of the rule.
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2. Abeyance
The proposed rule reflected the statutory requirement that if the
proceeding cannot move forward because a registration certificate for
the work is still pending, the CCB will hold the proceedings in
abeyance until a decision is made on the application.\31\ It also
provided that ``[i]f the proceeding has been held in abeyance for more
than one year, the Copyright Claims Board may dismiss the claim or
counterclaim without prejudice after providing thirty days written
notice.'' \32\ The Copyright Alliance et al. asked the Office to
clarify ``to whom written notice will be provided.'' \33\ The final
rule clarifies that the CCB will provide notice of the dismissal to all
parties to the proceeding.
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\31\ Id. at 1505(b)(2).
\32\ 86 FR at 21993.
\33\ Copyright Alliance et al. NPRM Comments at 10.
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3. Fees
The NPRM provided that a fee would be required to seek small claims
expedited registration.\34\ In response, two commenters raised
questions as to how the Office would handle small claims expedited
registration requests for works included in a group registration
application and whether the fee in such cases would be higher than for
works not included in a group application.\35\ To clarify, small claims
expedited registration relates to examination of the registration
application as a whole, and not to examination of the specific work or
works at issue before the CCB. Because the expedited registration fee
is paid per registration application, small claims expedited
registration for a group application will incur the same fee as is
applicable to a single-work application. Thus, there is no need to
revise the proposed rule to provide unique fees and procedures for
group registrations.
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\34\ 86 FR at 21992-94.
\35\ See Copyright Alliance et al. NPRM Comments at 8; SFWA NPRM
Comments at 2-3.
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To keep the CCB accessible while helping to offset some of the
anticipated cost increases related to small claims expedited
registration, the Office has determined that a $50 fee is reasonable.
Verizon argued that a $50 fee would be too low and ``would incentivize
claimants, large or small, to pay only $50 and file some claim at the
CCB in order to gain access to a quick registration, a CCB decision,
and possible statutory damages.'' \36\ The Office, however, believes it
is important to keep fees low wherever possible to advance the
statutory goal of providing a cost-effective alternative to federal
court. While the Office appreciates the concerns over potential abuses,
it should be noted that the statute specifically includes provisions to
deter abusive behavior and empowers the Office to promulgate various
regulations to safeguard the CCB, parties, and the public from such
practices.\37\ The Office believes that such concerns are more properly
addressed through the regulatory process than through its fee-setting
authority. The final rule thus does not revise the proposed fee and
establishes that applicants seeking small claims expedited registration
will pay a $50 fee for each request. This fee is in addition to the
relevant copyright registration application fee. In line with its
overall approach to fee-setting, the Office intends to periodically
reassess the reasonableness of the small claims expedited registration
fee once additional data about the operation of this service becomes
available.
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\36\ Verizon NPRM Comments at 2.
\37\ See 17 U.S.C. 1504(g), 1506(y), (z); 86 FR at 16164-65.
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4. Methods of Payment
Separately, the Copyright Alliance et al. proposed expanding the
permitted methods of payment available for small claims expedited
registration. The proposed rule specified that ``[t]he fee for small
claims expedited registration must be submitted electronically to the
Copyright Claims Board and not through the Copyright Office's
electronic registration system,'' and shall be paid, in accordance with
Office instructions posted online, by ``credit or debit cards, or
directly from [parties'] bank accounts by means of automated clearing
house (ACH) debit transactions.'' \38\ The Copyright Alliance et al.
recommended providing greater flexibility by allowing payment using
``prepaid cards and other widely accepted online payment options, like
PayPal, Zelle, Venmo, and

[[Page 46122]]

CashApp.'' \39\ The Office appreciates that providing additional
payment options could help to advance the statute's accessibility
goals. Presently, however, the Office is unable to accept the
alternative forms suggested, including because some are not supported
by <a href="http://Pay.gov">Pay.gov</a>, and due to additional administrative costs. Nevertheless,
in the interest of providing future flexibility, the Office is revising
this portion of the final rule to remove the references to specific
payment methods and instead to simply state that a claimant or
counterclaimant shall follow instructions on the Copyright Office
website to make electronic payments by <a href="http://Pay.gov">Pay.gov</a>. Such an approach will
enable the Office to consider possible additional methods of payment as
<a href="http://Pay.gov">Pay.gov</a> expands its capabilities.
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\38\ 86 FR at 21994.
\39\ Copyright Alliance et al. NPRM Comments at 8-9.
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5. Denied Requests
Finally, commenters addressed the proposed language allowing the
Office to deny a request for small claims expedited registration if the
requester did not pay the required fee or if the Office determines that
the request would be unduly burdensome. Comments submitted by the
Copyright Alliance et al. and by SFWA both expressed concern that the
proposed rule did not define the term ``unduly burdensome.'' \40\ The
Copyright Alliance et al. recommended guarding against uncertainty by
adopting language similar to that provided in the Compendium of U.S.
Copyright Office Practices in the context of special handling
requests.\41\ The Compendium states that the Office may reject a
request for special handling if the Office ``is unable to process the
request based on the Office's workload or budget at the time the
request is made.'' \42\ The Office agrees that this language would
provide greater certainty as to the considerations governing denial on
this basis. Accordingly, the rule has been revised to provide that if
the requisite fee has been paid for small claims expedited
registration, the Office will grant the request unless the Office
``determines that expedited registration under this section would be
unduly burdensome based on the Office's workload or budget at the time
the request is made.'' As under the proposed rule, the Office is
authorized to refund the fee in these circumstances.
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\40\ Copyright Alliance et al. NPRM Comments at 9; SFWA NPRM
Comments at 3.
\41\ Copyright Alliance et al. NPRM Comments at 9.
\42\ U.S. Copyright Office, Compendium of U.S. Copyright Office
Practices sec. 623.2 (3d ed. 2021).
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B. Freedom of Information Act

The final rule also adopts a technical edit to the Office's FOIA
regulations to reflect the CASE Act's reference to FOIA. The regulatory
language provides that ``Copyright Claims Board determinations
published on the Copyright Office website and related records and
information published on that website'' may be disclosed under
FOIA.\43\ By statute, all other materials related to CCB proceedings
are exempt from disclosure under FOIA.\44\
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\43\ 86 FR at 21993.
\44\ 17 U.S.C. 1506(t)(4).
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Commenters raised two issues related to the proposed rule. First,
the Copyright Alliance et al. argued that the rule required a technical
edit--the addition of a comma before ``and related records'' to
``clarify that only those records published on the Office's website are
. . . subject to FOIA.'' \45\ In their view, ``[w]ithout a comma
preceding `and related records,' it is unclear whether `on that
website' is intended to modify both `related records and information'
or just `information.' '' \46\ To clarify, the phrase ``on that
website'' is intended to modify both terms, and therefore only those
CCB records published on the Office's website will be subject to FOIA.
The Office is not persuaded, however, that the addition of the
suggested comma states that rule any more clearly than the text as
proposed. Further, it appears that the commenters' concern relates
primarily to questions regarding which records are considered
confidential and subject to a protective order.\47\ Those issues will
be addressed in a separate rulemaking. Accordingly, the Office does not
believe that the requested change is necessary.
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\45\ Copyright Alliance et al. NPRM Comments at 10.
\46\ Id. at 10 n.17.
\47\ See id. at 10 (``[I]nformation provided in the course of
discovery, such as documents, interrogatories, testimony, etc.
should be presumed to be confidential and should not be published/
subject to FOIA.'').
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Second, SFWA expressed concern that confidential sales figures
submitted to the CCB in connection with proving damages could be
``placed on [the CCB's] website or released in response to a FOIA
request.'' \48\ SFWA argued that if such information is subject to
FOIA, it ``could easily discourage many writers and creators of
copyrighted works, whom the CASE Act is intended to help, from bringing
claims or raising counterclaims.'' \49\ The Office recognizes SFWA's
concern about protecting sensitive or confidential information, but, as
noted, the Office intends to address these issues in a separate
rulemaking. Accordingly, the conforming amendment for the Office's FOIA
regulations is unchanged in the final rule.
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\48\ SFWA NPRM Comments at 3-4.
\49\ Id. at 4.
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List of Subjects

37 CFR Part 201

37 CFR Part 203

Freedom of information.

37 CFR Part 221

Claims, Copyright, Registration.

Final Regulations

For reasons stated in the preamble, the Copyright Office amends 37
CFR chapter II as follows:

PART 201--GENERAL PROVISIONS

0
1. The authority citation for part 201 continues to read as follows:

Authority: 17 U.S.C. 702.

0
2. Amend Sec. 201.3 by redesignating paragraphs (d)(8) through (17) as
paragraphs (d)(9) through (18), respectively, and adding new paragraph
(d)(8) to read as follows:

Sec. 201.3 Fees for registration, recordation, and related services,
special services, and services performed by the Licensing Division.

* * * * *
(d) * * *

(8) Small claims expedited registration fee for each request... $50

* * * * *

PART 203--FREEDOM OF INFORMATION ACT: POLICIES AND PROCEDURES

0
3. The authority citation for part 203 continues to read as follows:

Authority: 5 U.S.C. 552.

0
4. Amend Sec. 203.1 by adding a sentence at the end of the section to
read as follows:

Sec. 203.1 General.

* * * All information relating to proceedings of the Copyright
Claims Board under chapter 15 of the Copyright Act is exempt from
disclosure under FOIA, except for Copyright Claims Board determinations
published on the Copyright Office website and related records and
information published on that website.

0
5. Add subchapter B, consisting of part 221, to read as follows:

[[Page 46123]]

Subchapter B--Copyright Claims Board, Library of Congress

PART 221--REGISTRATION

Sec.
221.1 Registration requirement.
221.2 Small claims expedited registration.

Authority: 17 U.S.C. 702, 1510.

Sec. 221.1 Registration requirement.

(a) A claim or counterclaim alleging infringement of an exclusive
right in a copyrighted work may not be asserted before the Copyright
Claims Board unless the legal or beneficial owner of the copyright has
first delivered a completed application, a deposit, and the required
fee for registration of the copyright to the Copyright Office and a
registration certificate has either been issued or has not been
refused.
(b) For a work that has not yet been registered, a claimant or
counterclaimant who has a pending application to register the work must
indicate on its claim or counterclaim notice that the work is pending
registration and must include the work's service request (SR) number
that was assigned to the copyright registration claim. If the
proceeding cannot continue because of a pending registration, the
Copyright Claims Board shall hold proceedings in abeyance until the
claimant or counterclaimant provides the Copyright Claims Board with
the certificate of registration or the registration number on the
certificate of registration or certificate preview. The proceeding
shall be dismissed without prejudice if the Copyright Claims Board is
notified that the registration application was rejected. If the
proceeding has been held in abeyance for more than one year, the
Copyright Claims Board may dismiss the claim or counterclaim without
prejudice after providing thirty days written notice to all parties to
the proceeding.

Sec. 221.2 Small claims expedited registration.

(a) Eligibility. A claimant or counterclaimant alleging
infringement of an exclusive right in a copyrighted work before the
Copyright Claims Board is eligible to expedite a copyright registration
application under this section. This process shall be known as small
claims expedited registration.
(b) Initiating small claims expedited registration. The small
claims expedited registration process can only be initiated after the
claimant or counterclaimant has completed an application for copyright
registration and the proceeding has become active. To initiate the
small claims expedited registration process, the qualifying claimant or
counterclaimant must make a request and pay the required fee as
directed by the Copyright Claims Board. Parties should request small
claims expedited registration once the proceeding has become active.
Parties must not attempt to initiate small claims expedited
registration by using the Copyright Office's electronic registration
system (eCO).
(c) Fee--(1) Amount. The small claims expedited registration fee
for each request must be made for the appropriate amount, as prescribed
in Sec. 201.3(c). The fee for small claims expedited registration is
intended to accelerate the registration process for a qualifying
Copyright Claims Board claimant or counterclaimant that already has a
pending registration application; it is in addition to, and does not
offset, the fee for copyright registration.
(2) Method of payment. (i) The fee for small claims expedited
registration must be submitted electronically to the Copyright Claims
Board and not through the Copyright Office's electronic registration
system (eCO).
(ii) A claimant or counterclaimant shall follow instructions on the
Copyright Office website to make electronic payments by <a href="http://Pay.gov">Pay.gov</a>.
Applicants may not use a deposit account to make payments for small
claims expedited registration.
(3) No refunds. The small claims expedited registration fee is not
refundable, unless the small claims expedited registration request is
denied under paragraph (d) of this section.
(d) Denied requests. If the applicant failed to pay the required
fee or if the Copyright Office determines that expedited registration
under this section would be unduly burdensome based on the Office's
workload or budget at the time the request is made, the Office will
notify the applicant that the request has been denied and that the
copyright registration claim will be examined on a regular basis.
(e) Granted requests. If the request for expedited registration
under this section is granted, the Office will make every attempt to
examine the application or the document within ten business days after
notice of the request is delivered by the Copyright Claims Board to the
Copyright Office's Office of Registration Policy and Practice, although
the Copyright Office cannot guarantee that all applications or all
documents will be registered or recorded within that timeframe.
(f) Identical registration standards. The Copyright Office will
apply the same practices and procedures when examining a copyright
registration claim, regardless of whether the applicant asks for small
claims expedited registration.

Dated: August 3, 2021.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.

Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2021-17696 Filed 8-17-21; 8:45 am]
BILLING CODE 1410-30-P

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