Notice2021-26710
Deferred Registration Examination Study: Notice and Request for Public Comment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 10, 2021
Issuing agencies
Library of CongressCopyright Office, Library of Congress
Abstract
The U.S. Copyright Office is undertaking a public study to evaluate the merits of providing an option to defer examination of copyright registration application materials until a later request by the applicant. To aid in this effort, the Office is soliciting input from interested members of the public.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 235 (Friday, December 10, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 235 (Friday, December 10, 2021)]
[Notices]
[Pages 70540-70544]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26710]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
[Docket No. 2021-7]
Deferred Registration Examination Study: Notice and Request for
Public Comment
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of inquiry.
-----------------------------------------------------------------------
SUMMARY: The U.S. Copyright Office is undertaking a public study to
evaluate the merits of providing an option to defer examination of
copyright registration application materials until a later request by
the applicant. To aid in this effort, the Office is soliciting input
from interested members of the public.
DATES: Written comments must be received no later than 11:59 p.m.
Eastern Time on January 24, 2022.
ADDRESSES: For reasons of government efficiency, the Copyright Office
is using the <a href="http://regulations.gov">regulations.gov</a> system for the submission and posting of
public comments in this proceeding. All comments are therefore to be
submitted electronically through <a href="http://regulations.gov">regulations.gov</a>. Specific instructions
for submitting comments are available on the Copyright Office website
at <a href="https://www.copyright.gov/policy/deferred-examination">https://www.copyright.gov/policy/deferred-examination</a>. If electronic
submission of comments is not feasible due to lack of access to a
computer and/or the internet, please contact the Office using the
contact information below for special instructions.
FOR FURTHER INFORMATION CONTACT: Megan Efthimiadis, Assistant to the
General Counsel, by email at <a href="/cdn-cgi/l/email-protection#5e333b382a1e3d312e272c3739362a70393128"><span class="__cf_email__" data-cfemail="85e8e0e3f1c5e6eaf5fcf7ece2edf1abe2eaf3">[email protected]</span></a> or telephone at (202)
707-8350.
SUPPLEMENTARY INFORMATION: On May 24, 2021, Senator Thom Tillis sent a
letter seeking the Copyright Office's ``expertise and guidance
regarding adjusted copyright examination and registration
requirements.'' \1\ He requested that the Office complete ``a study
regarding the feasibility, benefits, and costs of creating an option
for deferring examination of an application.'' \2\ The letter further
provides:
---------------------------------------------------------------------------
\1\ Letter from Senator Thom Tillis, Ranking Member, S. Comm. on
the Judiciary, Subcomm. on Intellectual Prop., to Shira Perlmutter,
Register of Copyrights, U.S. Copyright Office at 1 (May 24, 2021),
<a href="https://www.copyright.gov/policy/deferred-examination">https://www.copyright.gov/policy/deferred-examination</a>.
\2\ Id.
The study should focus on adding an option for registering a
work in which the registrant can obtain an effective date of
registration upon submission of an application and deposit, while
choosing to defer the examination of the submitted work until the
registrant subsequently requests such an examination. It should also
consider and address what, if any, statutory changes would be
necessary to enable applicants who are given such an effective date
of registration to be able to commence a civil lawsuit in light of
Fourth Estate Pub. Ben. Corp. v. <a href="http://Wall-Street.com">Wall-Street.com</a>, LLC, 139 S. Ct.
881 (2019). . . . [T]his study must also take particular account of
the needs of the Library to maintain and grow its collections.\3\
---------------------------------------------------------------------------
\3\ Id. at 1-2.
---------------------------------------------------------------------------
[[Page 70541]]
I. Background
A. The Current Registration System
Under the Copyright Act, copyright protection attaches
automatically to an original work of authorship as soon as it is
created and fixed in tangible form.\4\ Registration of a claim to
copyright is not required.\5\ Although registration is optional, the
Copyright Act provides substantial incentives to encourage early
registration. First, a certificate of registration issued by the Office
after examination constitutes prima facie evidence of the validity of
the copyright and of the facts stated in the certificate, if the
registration is made before or within five years of the work's first
publication.\6\ Second, the Act provides that copyright owners are
eligible to obtain statutory damages and attorney's fees only if the
effective date of registration (``EDR'') is within three months of
first publication or before the infringement commences.\7\ Finally, a
civil action for copyright infringement involving a United States work
may not be instituted until registration has been made or refused by
the Office.\8\
---------------------------------------------------------------------------
\4\ 17 U.S.C. 102(a) (``Copyright protection subsists . . . in
original works of authorship fixed in any tangible medium of
expression.''); see id. 302(a) (``Copyright in a work created on or
after January 1, 1978, subsists from its creation.'').
\5\ Id. 408(a) (``Such registration is not a condition of
copyright protection.'').
\6\ Id. 410(c).
\7\ Id. 412. Section 410(d) states that the EDR ``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.''
\8\ Id. 411(a); see also Fourth Estate Pub. Ben. Corp. v. <a href="http://Wall-Street.com">Wall-Street.com</a>, LLC, 139 S. Ct. 881 (2019).
---------------------------------------------------------------------------
To apply for registration, an applicant must deliver to the Office
a completed application form, the applicable filing fee, and a deposit
consisting of a complete copy (or copies) of the work to be
registered.\9\ The Office ``examin[es]'' the ``material deposited'' to
determine whether it ``constitutes copyrightable subject matter'' and
whether ``the other legal and formal requirements of [title 17] have
been met.'' \10\ This examination includes confirming that the correct
filing fee was submitted and that applicable Office regulations and
practices have been complied with (e.g., whether the type of
registration used is available for the applicant's claim).\11\ It also
includes reviewing the application to ensure that the facts stated are
not contradicted by each other or by information in the deposit or
elsewhere in the materials submitted.\12\
---------------------------------------------------------------------------
\9\ 17 U.S.C. 408, 409, 708; see also U.S. Copyright Office,
Compendium of U.S. Copyright Office Practices sec. 204 (3d ed. 2021)
(``Compendium (Third)'').
\10\ 17 U.S.C. 410(a).
\11\ Compendium (Third) secs. 206, 602.4.
\12\ Id. at secs. 206, 602.4, 603, 609.
---------------------------------------------------------------------------
After examination, if the Office determines that the work
constitutes copyrightable subject matter and that the other
requirements have been met, it will register the claim and issue a
certificate of registration.\13\ The Office will also create an
official public record of the registration in its searchable online
records catalog and will make the deposit copies available for public
inspection.\14\ This public record includes key facts relating to the
authorship and ownership of the claimed work, as well as other
information, including the title, year of creation, date of
publication, and the type of authorship.\15\ If the Office determines
that a work is not copyrightable or that the claim is invalid for any
other reason, the Office will refuse registration and will not issue a
certificate or create an entry in the public catalog.\16\
---------------------------------------------------------------------------
\13\ 17 U.S.C. 410(a).
\14\ Id. 705(a)-(b).
\15\ The Office's online public records catalog is available at
<a href="https://cocatalog.loc.gov">https://cocatalog.loc.gov</a>.
\16\ 17 U.S.C. 410(b).
---------------------------------------------------------------------------
While the Office offers several registration options,\17\ there is
currently no option to delay or defer examination of the submitted
application materials. The Office does, however, offer an option to
preregister certain classes of works,\18\ without the more
comprehensive review undertaken as part of the full registration
process. Preregistration enables rightsholders to sue in court prior to
full registration, if followed later with an application package for
full registration within the statutorily allotted time.\19\ Instead of
submitting a deposit copy of the work for examination, preregistration
applicants only need to provide a short description of the work, and
the Office conducts only a limited review of the application to
ascertain whether the work is in a class for which the preregistration
option is available.\20\
---------------------------------------------------------------------------
\17\ For example, the Office issues basic registrations to
register copyright claims in individual works and certain works
containing separate and independent works, such as collective works
and units of publication; group registrations to register copyright
claims in groups of related works, such as photographs and
unpublished works; renewal registrations to cover the renewal term
for works copyrighted before January 1, 1978; and supplementary
registrations to correct or amplify the information in a
registration. See Compendium (Third) secs. 202.1, 1402.3.
\18\ Preregistration is currently available for motion pictures,
sound recordings, musical compositions, literary works being
prepared for publication in book form, computer programs (including
video games), and advertising or marketing photographs. 37 CFR
202.16(b)(1).
\19\ 17 U.S.C. 408(f), 411(a).
\20\ 37 CFR 202.16(c)(6)-(7).
---------------------------------------------------------------------------
B. Previously Received Public Comments
In connection with broader efforts to modernize its technological
infrastructure, the Office has solicited public input in prior
proceedings concerning the registration process. In some of these
proceedings, commenters discussed proposals concerning a deferred
examination registration option (which they also sometimes referred to
as delayed examination or provisional registration).\21\ To help inform
public comment in the present proceeding, these previous proposals are
briefly summarized below.\22\
---------------------------------------------------------------------------
\21\ These proceedings include: Registration Modernization, Dkt.
No. 2018-9 (comments available at <a href="https://copyright.gov/rulemaking/reg-modernization/">https://copyright.gov/rulemaking/reg-modernization/</a>); Copyright Office Fees, Dkt. No. 2018-4
(comments available at <a href="https://copyright.gov/rulemaking/feestudy2018/">https://copyright.gov/rulemaking/feestudy2018/</a>); Group Registration of Photographs, Dkt. No. 2016-10
(comments available at <a href="https://copyright.gov/rulemaking/group-photographs/">https://copyright.gov/rulemaking/group-photographs/</a>); and Copyright Protection for Certain Visual Works,
Dkt. No. 2015-1 (comments available at <a href="https://copyright.gov/policy/visualworks/">https://copyright.gov/policy/visualworks/</a>).
\22\ The Office notes that these comments were all received
before the Supreme Court's decision in Fourth Estate and prior to
the significant reduction in registration processing times achieved
by the Office over the last few years--from an overall average of
about seven months to about three months for all claims, with
approximately 70% of all applications now being processed in about
1.9 months on average. U.S. Copyright Office, Registration
Processing Times, <a href="https://copyright.gov/registration/docs/processing-times-faqs.pdf">https://copyright.gov/registration/docs/processing-times-faqs.pdf</a> (last visited December 6, 2021); see
generally U.S. Copyright Office, Explanation of U.S. Copyright
Office Registration Processes and Challenges (May 31, 2019), <a href="https://www.copyright.gov/laws/hearings/response-to-march-14-2019-senate-letter.pdf">https://www.copyright.gov/laws/hearings/response-to-march-14-2019-senate-letter.pdf</a>.
---------------------------------------------------------------------------
While commenters varied in their proposed approaches, they
generally envisioned a deferred examination option with the following
components: (1) An applicant could submit the application materials for
full registration at a discounted fee; \23\ (2) the Office
[[Page 70542]]
would not immediately examine any of the materials; \24\ (3) the Office
would still ingest information about the unregistered work into the
public catalog, retain the deposit, and make it available for the
Library's collections; \25\ (4) if later requested, for an additional
fee, the Office would examine the application materials and decide
whether or not to register the work; \26\ and (5) if the Office
registered the work, then the statutory benefits of registration would
attach, with an EDR reflecting the date when the original deferred
examination application materials were received.\27\ Commenters
generally seemed to contemplate that examination and full registration
would primarily be sought in connection with an infringement suit.\28\
No commenter proposed eliminating the current registration process for
those who prefer immediate examination.\29\
---------------------------------------------------------------------------
\23\ See, e.g., Coalition of Visual Artists (``CVA'')
Registration Modernization 2018 NOI Comments at 3, 18; Copyright
Alliance Registration Modernization 2018 NOI Comments at 11 (``[T]he
fee associated with the Delayed Examination Registration would be
significantly less than the fee paid associated with an examined
application.''); ImageRights International (``ImageRights'')
Registration Modernization 2018 NOI Comments at 4 (explaining that
the fees for a deferred examination option should be ``nominal'' and
``palatable'' because the option would ``eliminate the need and
costs for the specialists to review every single [work]
submitted''); Shaftel & Schmelzer Registration Modernization 2018
NOI Comments at 34 (``Provisional registration should cost less for
the first step, and cost the same in total after the second step as
a regular complete examination and registration.''); Professional
Photographers of America (``PPA'') Office Fees Initial Comments at
22; see also CVA Registration Modernization 2018 NOI Comments at 23-
24 (stating that ``[s]urvey results indicate broad support for . . .
possibly us[ing] online, tiered subscriptions'' where ``[t]he
registrant would opt only to register provisionally, in exchange for
a lower subscription fee''); ImageRights Registration Modernization
2018 NOI Comments at 4 (asking the Office to consider whether the
fee should be subscription based, allowing ``a claimant to submit
provisional registrations of an unlimited number of photographs'');
CVA Group Registration of Photographs Comments at 59 (``The
Copyright Office could create tiered registration fees for specific
quantities of images included in a group registration.'').
\24\ See, e.g., CVA Registration Modernization 2018 NOI Comments
at 18 (``Copyright owners would pay a discounted fee for a
registration of works without an immediate examination by the
Copyright Office.''); Copyright Alliance Registration Modernization
2018 NOI Comments at 11 (explaining that the application materials
submitted under the deferred examination option ``would not be
examined by the Copyright Office'' when initially submitted ``so no
certificate would be issued''); Graphic Artists Guild (``GA Guild'')
Registration Modernization 2018 NOI Comments at 4-5.
\25\ See, e.g., Copyright Alliance Registration Modernization
2018 NOI Comments at 14 & n.17 (stating that ``[t]he increase in
registrations would improve the public record,'' ``[t]he Office
could easily include a distinction between Delayed Examination
Registrations and examined registrations in the database, so as to
make clear which works have been examined,'' and ``[a]n increase in
registrations would increase the number of deposits for the
Library''); CVA Registration Modernization 2018 NOI Comments at 20-
21; PPA Registration Modernization 2018 NOI Comments at 13
(``Provisional registration could be paired with a self-deposit
system in which creators could create their own database of works,
which would be open to the Copyright Office and others for
interactive searching.''); Copyright Alliance Office Fees Initial
Comments at 19-20; PPA Office Fees Initial Comments at 22; Digital
Public Library of America (``DPLA'') Visual Works Study Initial
Comments at 5.
\26\ See, e.g., CVA Registration Modernization 2018 NOI Comments
at 19 (``If a copyright holder subsequently wanted to bring an
infringement suit, they would simply pay the Copyright Office a
separate fee to have the `provisional registration' examined for
originality and other formalities and converted to a regular
registration.''); Copyright Alliance Registration Modernization 2018
NOI Comments at 11-12 (``If a rights holder wants to bring an
infringement case, the rights holder would have to convert the
Delayed Examination Registration to an examined registration, which
would necessitate . . . the Office examining the Delayed Examination
and approving its conversion into an examined registration, and . .
. paying a conversion fee.''); ImageRights Registration
Modernization 2018 NOI Comments at 4; Shaftel & Schmelzer
Registration Modernization 2018 NOI Comments at 34; Shaftel &
Schmelzer Office Fees Initial Comments at 27-28; CVA Group
Registration of Photographs Comments at 58.
\27\ See, e.g., GA Guild Registration Modernization 2018 NOI
Comments 4-5 (``[O]nce the registration is converted to a regular
registration, the copyright owner would then have all the statutory
benefits of a regular registration, with the effective date of
registration being the date the Copyright Office received the
provisional registration.''); CVA Registration Modernization 2018
NOI Comments at 18-19 (``The EDR for determining benefits under
copyright law . . . would be the date the Copyright Office received
the `Provisional Application' along with the required deposit copy
and fee payment.''); Copyright Alliance Registration Modernization
2018 NOI Comments at 12; PPA Registration Modernization 2018 NOI
Comments at 13; CVA Group Registration of Photographs Comments at 59
(``When the application for deferred examination is approved, the
effective date of the registration will date back to when the
materials were filed, as is the present establishment of date of
registration.'').
\28\ See, e.g., CVA Registration Modernization 2018 NOI Comments
at 19; Copyright Alliance Registration Modernization 2018 NOI
Comments at 11-12; PPA Office Fees Initial Comments at 22; Shaftel &
Schmelzer Office Fees Initial Comments at 27-28.
\29\ See, e.g., PPA Registration Modernization 2018 NOI Comments
at 14; Shaftel & Schmelzer Registration Modernization 2018 NOI
Comments at 33 (``We also want the Copyright Office to keep the
existing immediate examination system, too, for authors/creators who
ask for it.'').
---------------------------------------------------------------------------
Commenters offered different proposals regarding eligibility for
deferred examination. Some recommended that the option only be
available for ``high-volume registrations'' \30\ or specific classes of
works like photographs,\31\ while others suggested it be available for
all works.\32\ With respect to who should be eligible to request later
examination of a deferred examination claim, the Copyright Alliance
suggested that the party should be the ``rights holder,'' \33\ while
CVA proposed that ``a party other than the copyright holder'' who is
seeking ``a declaration of non-infringement or other legal proceeding''
should also ``be permitted to pay the fee and have the Copyright Office
undertake a final review of the [deferred examination] application''
materials.\34\
---------------------------------------------------------------------------
\30\ PPA Office Fees Initial Comments at 22.
\31\ ImageRights Registration Modernization 2018 NOI Comments at
4.
\32\ CVA Registration Modernization 2018 NOI Comments at 18;
Copyright Alliance Registration Modernization 2018 NOI Comments at
11.
\33\ Copyright Alliance Registration Modernization 2018 NOI
Comments at 11-12.
\34\ CVA Registration Modernization 2018 NOI Comments at 19.
---------------------------------------------------------------------------
Commenters also expressed different opinions regarding the
appropriate time limit, if any,\35\ for examination to be requested.
Some commenters suggested that the examination request should be made
within a specific time period; if not, the applicant would lose the
benefit of having filed the deferred examination application.\36\ Some
proposed that this period be as short as one year, while others
proposed that it be as long as the full term of the copyright.\37\
---------------------------------------------------------------------------
\35\ See Shaftel & Schmelzer Registration Modernization 2018 NOI
Comments at 34 (``There should be no deadline to convert the first
step of a provisional registration to finalize the completed
examined registration, and no sunset on the EDR of works submitted
for the first step.'')
\36\ Copyright Alliance Registration Modernization 2018 NOI
Comments at 12 n.14.
\37\ CVA Registration Modernization 2018 NOI Comments at 20
(``[W]e believe that a provisional registrant should be able to
finalize registration any time in the life of the copyright.'');
Copyright Alliance Registration Modernization 2018 NOI Comments at
12 n.14 (``Some of our members believe the time period should be as
long as the term of protection, while others believe it should be as
short as 1 year.''); ImageRights Registration Modernization 2018 NOI
Comments at 4 (suggesting claimants would have ``some period'' of
time to request examination).
---------------------------------------------------------------------------
Comments also diverged with respect to how the deferred examination
option would impact the registration prerequisite for instituting a
civil action for infringement. While most commenters supported
maintaining the existing registration rule,\38\ CVA asked the Office to
consider whether a request to examine the deferred examination
application materials ``should be sufficient for filing a lawsuit, or
should be moved to the `front of the line' for immediate processing.''
\39\
---------------------------------------------------------------------------
\38\ See e.g., PPA Registration Modernization 2018 NOI Comments
at 14 (``Those who choose to utilize provisional registration and
self-deposit would establish an effective date of registration but
would not be considered to have satisfied the Section 411
requirement to bring suit.''); CVA Registration Modernization 2018
NOI Comments at 19; Copyright Alliance Registration Modernization
2018 NOI Comments at 11-12 (``If a rights holder wants to bring an
infringement case, the rights holder would have to convert the
Delayed Examination Registration to an examined registration.'');
DPLA Visual Works Study Initial Comments at 5 (stating that deferred
examination should ``not carry the full benefits of full
registration, such as access to statutory damages and attorney's
fees'').
\39\ CVA Registration Modernization 2018 NOI Comments at 19-20.
---------------------------------------------------------------------------
Commenters encouraged the Office to explore how best to administer
a deferred examination option, taking into account its budget and
resources.\40\
[[Page 70543]]
Commenters also identified a number of potential benefits of offering a
deferred examination option, including increasing the number of
registrations,\41\ encouraging timely registrations,\42\ expanding the
public record,\43\ improving the Office's efficiency by removing the
examination step,\44\ decreasing processing times,\45\ lowering the
Office's expenses,\46\ and increasing the number of deposits available
for the Library's collections.\47\
---------------------------------------------------------------------------
\40\ Copyright Alliance Office Fees Initial Comments at 20
(``The Office should also articulate any barriers it believes it
faces in implementing innovative fee structures. It's one thing if
the Office is restricted from implementing certain changes because
the statute does not provide it the authority to do so, but it's
another if the Office is restricted because of practical or
technological limitations--the latter being much easier to address.
The Office should also explore other ways to reduce examination
costs in addition to modernizing.'').
\41\ Copyright Alliance Registration Modernization 2018 NOI
Comments at 13-14 (stating that deferred examination would ``help
incentivize those who want to register but cannot afford to do so
under the existing system''); GA Guild Registration Modernization
2018 NOI Comments at 5 (stating that deferred examination would
``provide individual copyright holders an affordable means to
effectively register their works and avail themselves of the
protections of registration''); PPA Office Fees Initial Comments at
22 (``With the lower provisional fee, this approach would encourage
creators to register more often.''); CVA Registration Modernization
2018 NOI Comments at 21 (stating that deferred examination would
result in ``lower registration fees, faster processing, and
drastically increased limits on the number of works in a single
registration''); DPLA Visual Works Study Initial Comments at 5;
Shaftel & Schmelzer Registration Modernization 2018 NOI Comments at
34.
\42\ Copyright Alliance Registration Modernization 2018 NOI
Comments at 13 (stating that deferred examination would
``[e]ncourage rights holders to register more quickly and not wait
to determine which of their works are commercially valuable or
infringed before registering'').
\43\ CVA Registration Modernization 2018 NOI Comments at 21
(``[T]he public record would benefit from the increased
registrations.''); Copyright Alliance Registration Modernization
2018 NOI Comments at 13; PPA Office Fees Initial Comments at 22.
\44\ Copyright Alliance Registration Modernization 2018 NOI
Comments at 12 (stating that deferred examination would ``increase
the Office's efficiency by eliminating the need to fully review
every single application that comes through the door and thus also
lower the Copyright Office expenses and improve pendency''); CVA
Registration Modernization 2018 NOI Comments at 21 (``Under a
provisional registration system, the Copyright Office would
eliminate the expensive and inefficient burden of examining all
works.''); Shaftel & Schmelzer Registration Modernization 2018 NOI
Comments at 33 (``Provisional registration solves time-consuming
examination procedures for the Copyright Office. Very few copyright
registrations are actually litigated in courts.'').
\45\ CVA Registration Modernization 2018 NOI Comments at 21
(stating that deferred examination would result in ``faster
processing''); PPA Registration Modernization 2018 NOI Comments at
14 (discussing how a deferred examination option creates ``a system
for receiving simplified registrations that require a minimum of
manpower to process (or none at all in an automated system)'').
\46\ Copyright Alliance Registration Modernization 2018 NOI
Comments at 14 (``It will be easier for the Copyright Office to
balance its budget by allowing the Office to use congressional
appropriations on modernization or other expenses, rather than to
subsidize registration examination.''); id. at 12-13 (``If Delayed
Examination Registrations were permitted, the Office would could set
the fee for a Delayed Examination Registration to be equal to the
cost of processing the application, thereby allowing the Office to
benefit from increased filings without losing money.'').
\47\ Copyright Alliance Registration Modernization 2018 NOI
Comments at 14 (``An increase in registrations would increase the
number of deposits for the Library.''); CVA Registration
Modernization 2018 NOI Comments at 20 (noting that the proposal
``would generate a significant upsurge in the public record
surrounding copyrighted works as well as deposits to the Library of
Congress'').
---------------------------------------------------------------------------
II. Subjects of Inquiry
The Office invites written comments on the subjects below. A party
choosing to respond to this Notice of Inquiry need not address every
subject, but the Office requests that responding parties clearly
identify and separately address each subject for which a response is
submitted. The Office also requests that commenters explain their
interest in the study and, with respect to each answer, the basis for
their knowledge.
A. Purpose of Deferred Examination Option
1. What specific perceived deficiencies in the current registration
regime could a deferred examination option address?
2. What are the potential benefits and drawbacks to offering a
deferred examination option? Responses should consider the positive and
negative effects on both copyright owners and users, as well as on the
registration system itself, and should include any empirical data or
other evidence relevant to your assertions. Responses should also
consider whether, or to what extent, a deferred examination option
might either further or impede the purposes of registration.\48\
---------------------------------------------------------------------------
\48\ See U.S. Copyright Office, Explanation of U.S. Copyright
Office Registration Processes and Challenges at 3-6 (May 31, 2019),
<a href="https://www.copyright.gov/laws/hearings/response-to-march-14-2019-senate-letter.pdf">https://www.copyright.gov/laws/hearings/response-to-march-14-2019-senate-letter.pdf</a>.
---------------------------------------------------------------------------
B. Procedural Issues
3. If you are advocating for a deferred examination option,
describe the specific legal or regulatory framework you envision. Would
any statutory amendments be necessary?
4. Should a deferred examination option have any work-based,
applicant-based, or other eligibility restrictions? For example, should
the availability of the option depend on whether the work belongs to a
specific class of works (e.g., photographs), is published or
unpublished, and/or is deposited in physical or electronic form?
5. How should deferred examination operate in connection with an
application to register multiple works?
6. How should the filing fees be determined for a deferred
examination option, including both for the initial submission and later
examination, and how should they compare with fees where examination is
not deferred?
7. Should applications for deferred examination undergo any kind of
initial review (e.g., to verify the accuracy of the filing fee, that
the application is complete, that the deposit is in the correct form,
etc.)?
8. Who should be permitted to request examination of a deferred
examination application package? For example, should such a request be
limited to an author or copyright owner, or should other interested
parties also be permitted to request examination?
9. Should there be a time limit for requesting examination (e.g.,
one year)? If so, what should be the ramifications of failing to
request examination within the prescribed period? Responses should
consider the implications for the Office's administration of the
registration system, including the retention and storage of deposits
and other application materials, as well as the governing principles
that should apply to an eventual examination.
10. How, if at all, should a deferred examination option account
for any changes in the required application information that occur
between submission and examination (e.g., a change in ownership or
publication status)?
11. How, if at all, should any deficiencies in the application
materials discovered during examination be addressed with respect to
the EDR and the current requirements of section 410? \49\
---------------------------------------------------------------------------
\49\ See CVA Registration Modernization 2018 NOI Comments at 20
(``There should be a stop-gap that allows errors in registration to
be fixed with the EDR being preserved and warns registrants of the
risks.'').
---------------------------------------------------------------------------
C. Impact
12. How, if at all, would a deferred examination option affect the
public records maintained by the Office? For example, should
information about a work submitted for registration using a deferred
examination option be indexed into the public catalog prior to the
claim being examined and registered? What are the potential benefits
and drawbacks to such an approach? For example, how, if at all, may it
affect the integrity and reliability of the public record?
13. How, if at all, might a deferred examination option affect the
ability of the Library of Congress to maintain and grow its
collections? \50\ For example,
[[Page 70544]]
should a work submitted for registration using a deferred examination
option when the claim has not yet been examined and registered be
eligible for selection for the Library's collections? What are the
potential benefits and drawbacks to such an approach?
---------------------------------------------------------------------------
\50\ See 17 U.S.C. 704(b) (``In the case of published works, all
copies, phonorecords, and identifying material deposited are
available to the Library of Congress for its collections, or for
exchange or transfer to any other library. In the case of
unpublished works, the Library is entitled, under regulations that
the Register of Copyrights shall prescribe, to select any deposits
for its collections.'').
---------------------------------------------------------------------------
14. How, if at all, might a deferred examination option affect the
ability to bring suit in light of the Supreme Court's decision in
Fourth Estate Public Benefit Corp. v. <a href="http://Wall-Street.com">Wall-Street.com</a>, LLC? For
example, should a later request for examination be sufficient to bring
suit? \51\ What are the potential benefits and drawbacks to such an
approach?
---------------------------------------------------------------------------
\51\ See CVA Registration Modernization 2018 NOI Comments at 19
(``The Copyright Office should consider whether an application to
finalize a provisional registration should be sufficient for filing
a lawsuit.'').
---------------------------------------------------------------------------
15. Could a deferred examination option be used for improper
purposes, such as to obtain an official record for material that is
non-copyrightable in an effort to harass or defraud others? If so, how
might such abuses be prevented?
16. How, if at all, might a deferred examination option affect
enforcement of a copyright by the U.S. Customs and Border Protection?
\52\
---------------------------------------------------------------------------
\52\ U.S. Customs and Border Protection (``CBP'') has the
authority to detain, seize, forfeit, and ultimately destroy
merchandise seeking entry into the United States if it bears an
infringing copyright that has been registered with the Office, and
has subsequently been recorded with CBP. U.S. Customs & Border
Protection, Intellectual Property Rights e-Recordation, <a href="https://iprr.cbp.gov/">https://iprr.cbp.gov/</a> (last visited Dec. 6, 2021). Congress has further
required the CBP to implement a process by which it will ``enforce a
copyright for which the owner has submitted an application for
registration under title 17 with the United States Copyright Office,
to the same extent and in the same manner as if the copyright were
registered with the Copyright Office.'' 19 U.S.C. 4343 (emphasis
added).
---------------------------------------------------------------------------
D. Alternative Approaches
17. Could the same goals that a deferred examination option is
meant to achieve be accomplished through alternative means, such as by
amending the preregistration regime or the eligibility for statutory
damages, or by reducing filing fees or adding new or expanded group
registration options? Responses should discuss the potential benefits
and drawbacks of any alternatives and why they may or may not be
preferable.
E. Other Issues
18. Please identify any pertinent issues not referenced above that
the Office should consider in conducting its study.
Dated: December 6, 2021.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.
[FR Doc. 2021-26710 Filed 12-9-21; 8:45 am]
BILLING CODE 1410-30-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on December 10, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.