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Rule2022-08654

Small Claims Expedited Registration Procedures: Clarification

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Published

April 22, 2022

Effective

April 22, 2022

Issuing agencies

Library of CongressCopyright Office, Library of Congress

Abstract

The U.S. Copyright Office is amending its regulations to clarify the rules governing the expedited registration option under the Copyright Alternative in Small-Claims Enforcement Act of 2020. The amendment clarifies that when a Copyright Claims Board proceeding cannot continue because a registration is still pending, the Board may hold proceedings in abeyance at any point before a final determination is issued. The rule also describes the process for the Board to receive registration certificates when they are issued while a proceeding is pending, allows parties to request expedited registration before a proceeding becomes active, and corrects non-substantive typographical errors.

Full Text

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<title>Federal Register, Volume 87 Issue 78 (Friday, April 22, 2022)</title>
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[Federal Register Volume 87, Number 78 (Friday, April 22, 2022)]
[Rules and Regulations]
[Pages 24056-24058]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-08654]

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LIBRARY OF CONGRESS

37 CFR Parts 201 and 221

[Docket No. 2021-2]

Small Claims Expedited Registration Procedures: Clarification

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
clarify the rules governing the expedited registration option under the
Copyright Alternative in Small-Claims Enforcement Act of 2020. The
amendment clarifies that when a Copyright Claims Board proceeding
cannot continue because a registration is still pending, the Board may
hold proceedings in abeyance at any point before a final determination
is issued. The rule also describes the process for the Board to receive
registration certificates when they are issued while a proceeding is
pending, allows parties to request expedited registration before a
proceeding becomes active, and corrects non-substantive typographical
errors.

DATES: Effective April 22, 2022.

[[Page 24057]]

FOR FURTHER INFORMATION CONTACT: Megan Efthimiadis, Assistant to the
General Counsel, by email at <a href="/cdn-cgi/l/email-protection#3c51595a487c5f534c454e555b5448125b534a"><span class="__cf_email__" data-cfemail="c0ada5a6b480a3afb0b9b2a9a7a8b4eea7afb6">[email&#160;protected]</span></a>, or by telephone at
202-707-8350.

SUPPLEMENTARY INFORMATION:

I. Background

The Copyright Alternative in Small-Claims Enforcement (``CASE'')
Act of 2020 \1\ directs the Copyright Office to establish the Copyright
Claims Board (``CCB'' or ``Board''), a voluntary tribunal within the
Office comprised of three Copyright Claims Officers who have the
authority to render determinations on certain copyright claims for
economic recoveries within the statutory limit. The Office issued a
notification of inquiry (``NOI'') and subsequent notices of proposed
rulemaking (``NPRM'') to describe the CASE Act's legislative background
and regulatory scope and to ask for public input on various topics.\2\
One NPRM addressed ``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.'' \3\
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\1\ Public Law 116-260, sec. 212, 134 Stat. 1182, 2176 (2020).
\2\ 86 FR 16156, 16161 (Mar. 26, 2021).
\3\ 86 FR 21990, 21991 (quoting 17 U.S.C. 1505(d)).
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In August 2021, the Librarian of Congress, after consulting with
the Register of Copyrights, issued a final rule promulgating
regulations to govern the expedited registration process.\4\ The final
rule contained the following language: ``[i]f 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.'' \5\ The final
rule also only allowed a party to initiate the expedited registration
process once ``the proceeding has become active.'' \6\
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\4\ 86 FR 46119 (Aug. 18, 2021).
\5\ Id. at 46123 (codified at 37 CFR 221.1(b)).
\6\ Id. (codified at 37 CFR 221.1(b)).
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II. Final Rule

The Board asked the Office to clarify two points regarding the
regulations. First, the Board asked to clarify that neither the
regulations nor the CASE Act require that a CCB proceeding must be held
in abeyance immediately at the point the Board discovers that the claim
concerns a work with a pending registration. The Office had promulgated
a rule reflecting that the CASE Act allows for a proceeding to be held
in abeyance where ``the proceeding may not proceed further because a
registration certificate for the work is pending.'' \7\ The CASE Act
also states that ``if the proceeding is held in abeyance for more than
1 year, the Copyright Claims Board may, upon providing written notice
to the parties to the proceeding, and 30 days to the parties to respond
to the notice, dismiss the proceeding without prejudice'' and that the
Board cannot issue a final determination for a claim involving a work
that has been denied registration.\8\ The CASE Act does not offer
additional guidance on when a proceeding may not proceed further due to
a pending registration certificate.
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\7\ 17 U.S.C. 1505(b)(2); 86 FR 46119, 46123 (codified at 37 CFR
221.1(b)).
\8\ Id. at 1505(b)(2)-(3).
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Where a registration application is pending for a work at issue
before the Board, the Board has the authority to hold the proceeding in
abeyance at any point where it believes the pendency means that the
proceeding should not proceed further. If a work's eligibility for
copyright registration is not at issue, the Board may not have any
reason to delay the proceeding while the Copyright Office considers the
application. In other circumstances, the Board may decide to halt the
proceedings until after the Copyright Office makes a registration
decision. The amended regulations reflect that it is within the Board's
discretion, up to the issuance of its final determination, to determine
whether and when a proceeding may not proceed further due to a pending
registration.
Second, the Board asked the Office to clarify the procedures
related to submitting a registration certificate and lifting the
abeyance. The regulations state that proceedings will be held in
abeyance due to a pending registration ``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.'' \9\ While this
process complies with the requirement that ``the proceeding shall be
held in abeyance pending submission of the certificate to the Copyright
Claims Board,'' \10\ the rule did not explain that where party submits
a registration number, and not the registration certificate, the Office
will provide a copy of the certificate to the Board to include in the
proceeding's record. While the Office hopes to automate this process in
the future, parties should contact the Board when submitting the
registration number, so the Board can notify the Office to complete the
certificate submission process. In all circumstances, the parties to
the proceeding will be given ``an opportunity to address the
registration certificate'' before the Board renders a
determination.\11\
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\9\ 86 FR 46119, 46123 (codified at 37 CFR 221.1(b)).
\10\ 17 U.S.C. 1505(b)(2).
\11\ Id. at 1505(b)(1)(B).
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The Board also suggested that the Office allow a claimant or
counterclaimant to request expedited registration before a proceeding
becomes active, with the Board's permission. While the Office's NPRM
stated that a rule that only allowed a claimant or counterclaimant to
request expedited registration after a proceeding becomes active would
``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,'' \12\ at this point
the Office agrees that the Board should have the authority to allow a
claimant or counterclaimant with a pending application to request
expedited registration prior to a proceeding becoming active. In
particular, the amendment will allow claimants or counterclaimants to
receive an earlier registration decision where copyrightability is
unclear. The Office is implementing the Board's suggestion in the final
rule, but will revisit this rule if the aforementioned concerns
materialize.
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\12\ 86 FR 21990, 21992.
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Finally, while the final rule clearly stated that an expedited
registration request applied to a ``registration application,'' the
language describing the fee stated that it applied to ``each request''
without noting that this specifically referred to an application
request.\13\ This final rule clarifies that language and also removes
minor typographical errors.
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\13\ 86 FR 46119, 46122-23 (codified at 37 CFR 221.2(c)(1)).
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These amendments constitute a change to a ``rule[ ] of agency . . .
procedure[ ] or practice'' \14\ and do not ``alter the rights or
interests of parties.'' \15\ Therefore, these amendments are not
subject to the notice and comment requirements of the Administrative
Procedure Act and are being issued as a final rule.
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\14\ 5 U.S.C. 553(b)(A).
\15\ JEM Broad. Co. v. F.C.C., 22 F.3d 320, 326 (D.C. Cir. 1994)
(internal citation omitted).

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[[Page 24058]]

List of Subjects

37 CFR Part 201

37 CFR Part 221

Final Regulations

For the reasons stated in the preamble, the U.S. Copyright Office
amends chapter II, subchapters A and B, of title 37 Code of Federal
Regulations as follows:

SUBCHAPTER A--COPYRIGHT OFFICE AND PROCEDURES

PART 201--GENERAL PROVISIONS

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

Authority: 17 U.S.C. 702.
Section 201.10 also issued under 17 U.S.C. 304.

0
2. In Sec. 201.3, revise 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 Section and
the Copyright Claims Board.

* * * * *
(d) * * *

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(8) Small claims expedited registration fee per registration 50
application request.........................................
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* * * * *

PART 221--REGISTRATION

0
3. The authority citation for part 221 continues to read as follows:

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

0
4. In Sec. 221.1, revise paragraph (b) to read as follows:

Sec. 221.1 Registration requirement.

* * * * *
(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 Copyright
Claims Board, in its discretion, at any time determines that the
proceeding may not proceed forward because of a pending registration,
the Copyright Claims Board shall issue an order holding the proceeding
in abeyance until it is provided with the certificate of registration
or the registration number on the certificate of registration or
certificate preview. Under this provision, the Copyright Claims Board
can decide to hold the proceeding in abeyance at any point in the
proceeding, but must dismiss the proceeding without prejudice if it is
notified that the registration application was refused. 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.

0
5. In Sec. 221.2, revise paragraphs (b) and (e) to read as follows:

Sec. 221.2 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 either the Copyright Claims Board has issued an order
holding the proceedings in abeyance pursuant to Sec. 221.1(b) and has
granted the applicant permission to request an expedited registration
or 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 set forth
in Sec. 201.3(d). Parties must not attempt to initiate small claims
expedited registration by using the Copyright Office's electronic
registration system (eCO).
* * * * *
(e) Granted requests. If the request for expedited registration
under this section is granted, the Office will make every attempt to
examine the application within 10 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 will be
examined within that timeframe.
* * * * *

Dated: April 15, 2022.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.

Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2022-08654 Filed 4-21-22; 8:45 am]
BILLING CODE 1410-30-P

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