83_FR_52350 83 FR 52150 - Filing of Schedules by Rights Owners and Contact Information by Transmitting Entities Relating to Pre-1972 Sound Recordings

83 FR 52150 - Filing of Schedules by Rights Owners and Contact Information by Transmitting Entities Relating to Pre-1972 Sound Recordings

LIBRARY OF CONGRESS
Copyright Office

Federal Register Volume 83, Issue 200 (October 16, 2018)

Page Range52150-52154
FR Document2018-22518

The U.S. Copyright Office is issuing interim regulations pursuant to the Classics Protection and Access Act, title II of the recently enacted Orrin G. Hatch-Bob Goodlatte Music Modernization Act. These regulations pertain to the filing of schedules by rights owners listing their sound recordings fixed before February 15, 1972, and the filing of contact information by entities publicly performing these sound recordings by means of digital audio transmission. As required under the Act, the Office is also specifying how individuals may request timely notification of the filing of such schedules with the Office. These regulations are issued on an interim basis with opportunity for comment to comply with statutory requirements and to ensure that both rights owners and transmitting entities can promptly make use of these new filing mechanisms to protect their respective legal interests. The Office welcomes comment on these interim rules.

Federal Register, Volume 83 Issue 200 (Tuesday, October 16, 2018) 
[Federal Register Volume 83, Number 200 (Tuesday, October 16, 2018)]
[Rules and Regulations]
[Pages 52150-52154]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-22518]


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LIBRARY OF CONGRESS

 Copyright Office

37 CFR Part 201

[Docket No. 2018-7]


Filing of Schedules by Rights Owners and Contact Information by 
Transmitting Entities Relating to Pre-1972 Sound Recordings

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

ACTION: Interim rule with request for comments.

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SUMMARY: The U.S. Copyright Office is issuing interim regulations 
pursuant to the Classics Protection and Access Act, title II of the 
recently enacted Orrin G. Hatch-Bob Goodlatte Music Modernization Act. 
These regulations pertain to the filing of schedules by rights owners 
listing their sound recordings fixed before February 15, 1972, and the 
filing of contact information by entities publicly performing these 
sound recordings by means of digital audio transmission. As required 
under the Act, the Office is also specifying how individuals may 
request timely notification of the filing of such schedules with the 
Office. These regulations are issued on an interim basis with 
opportunity for comment to comply with statutory requirements and to 
ensure that both rights owners and transmitting entities can promptly 
make use of these new filing mechanisms to protect their respective 
legal interests. The Office welcomes comment on these interim rules.

DATES: The effective date of the interim regulations is October 16, 
2018. Written comments must be received no later than 11:59 p.m. 
Eastern Time on November 15, 2018.

ADDRESSES: For reasons of government efficiency, the Copyright Office 
is using the regulations.gov system for the submission and posting of 
public comments in this proceeding. All comments are therefore to be 
submitted electronically through regulations.gov. Specific instructions 
for submitting comments are available on the Copyright Office's website 
at https://www.copyright.gov/rulemaking/pre1972-soundrecordings-schedules/. 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: Regan A. Smith, General Counsel and 
Associate Register of Copyrights, by email at [email protected], 
Anna Chauvet, Assistant General Counsel, by email at 
[email protected], or Jason E. Sloan, Assistant General Counsel, by 
email at [email protected]. Each can be contacted by telephone by 
calling (202) 707-8350.

SUPPLEMENTARY INFORMATION: 

I. Background

    On October 11, 2018, the president signed into law the Orrin G. 
Hatch-Bob Goodlatte Music Modernization Act,

[[Page 52151]]

H.R. 1551 (``MMA''). Title II of the MMA, the Classics Protection and 
Access Act, created chapter 14 of the copyright law, title 17, United 
States Code, which, among other things, extends remedies for copyright 
infringement to owners of sound recordings fixed before February 15, 
1972 (``Pre-1972 Sound Recordings''). Under the provision, rights 
owners may be eligible to recover statutory damages and/or attorneys' 
fees for the unauthorized use of their Pre-1972 Sound Recordings if 
certain requirements are met.
    Specifically, to be eligible for these remedies, rights owners must 
typically file schedules listing their Pre-1972 Sound Recordings 
(``Pre-1972 Schedules'') with the U.S. Copyright Office (the 
``Office''), which are then indexed into the Office's public 
records.\1\ The remedies are only available for unauthorized uses of a 
recording that have occurred more than 90 days after indexing.\2\ Pre-
1972 Schedules must include the name of the rights owner, title, and 
featured artist for each recording listed, and ``such other 
information, as practicable, that the Register of Copyrights prescribes 
by regulation.'' \3\ The filing requirement ``is designed to operate in 
place of a formal registration requirement that normally applies to 
claims involving statutory damages.'' \4\ In addition, the Pre-1972 
Schedules are important to the Act's new exemption for noncommercial 
uses of Pre-1972 Sound Recordings that are not being commercially 
exploited.\5\ Under that provision, persons seeking to use the 
exemption are exempt from liability for unauthorized use if they make a 
``good faith, reasonable search for'' a given sound recording in the 
Office's records of Pre-1972 Schedules before determining that the 
recording is not being commercially exploited.\6\ In establishing a 
filing mechanism for Pre-1972 Schedules, the Office must also provide a 
means for individuals to request and receive timely notification when 
such filings are indexed into the Office's public record.\7\
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    \1\ 17 U.S.C. 1401(f)(5)(A)(i)(I)-(II).
    \2\ Id. 1401(f)(5)(A)(i)(II).
    \3\ Id. 1401(f)(5)(A)(i)(I).
    \4\ H.R. Rep. No. 115-651, at 16 (2018); see S. Rep. No. 115-
339, at 18 (2018); 17 U.S.C. 412 (stating that generally ``no award 
of statutory damages or of attorney's fees . . . Shall be made for . 
. . any infringement of copyright in an unpublished work commenced 
before the effective date of its registration'' or ``any 
infringement of copyright commenced after first publication of the 
work and before the effective date of its registration, unless such 
registration is made within three months after the first publication 
of the work'').
    \5\ 17 U.S.C. 1401(c)(1)(A)(i). The Copyright Office is 
separately issuing a notice of inquiry related to regulations the 
Register must promulgate regarding this exception. See id. 
1401(c)(3), (5)(A).
    \6\ Id. 1401(c)(1)(A).
    \7\ Id. 1401(f)(5)(A)(ii)(II)-(III).
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    In addition, rights owners must provide specific notice of 
unauthorized use to certain entities that were previously transmitting 
Pre-1972 Sound Recordings, before pursuing certain remedies against 
them. To be entitled to receive direct notice of unauthorized activity 
from a rights owner, an entity must have been publicly performing a 
Pre-1972 Sound Recording by means of digital audio transmission at the 
time of enactment of section 1401 and must file its contact information 
with the Copyright Office within 180 days of enactment, that is, by 
April 9, 2019.\8\ Where a valid notice of contact information has been 
filed, the rights owner may be eligible to obtain statutory damages 
and/or attorneys' fees only after sending the transmitting entity a 
notice stating that it is not legally authorized to use the Pre-1972 
Sound Recording, and identifying the Pre-1972 Sound Recording in a 
schedule conforming to the requirements by the Office for filing Pre-
1972 Schedules.\9\ In addition, the unauthorized use must have occurred 
90 days after the entity receives the notice.\10\ After April 9, 2019, 
the Office cannot accept any new filings of contact information by 
transmitting entities.\11\ For any eligible transmitting entity that 
does not file its contact information by April 9, 2019, rights owners 
are not obligated to send it a direct notice of unauthorized use prior 
to becoming eligible for statutory damages and/or attorneys' fees.\12\ 
Rather, as described above, rights owners would file Pre-1972 Schedules 
with the Copyright Office, and they would become eligible for these 
remedies for unauthorized uses of a recording occurring more than 90 
days after indexing of the schedules.\13\
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    \8\ Id. 1401(f)(5)(B)(i)-(ii).
    \9\ Id. 1401(f)(5)(B)(iii).
    \10\ Id. 1401(f)(5)(B)(iii)(I).
    \11\ Id. 1401(f)(5)(B)(ii).
    \12\ H.R. Rep. No. 115-651, at 16 (2018); see S. Rep. No. 115-
339, at 19 (2018).
    \13\ 17 U.S.C. 1401(f)(5)(A).
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II. Interim Rule

    The Office promulgates the following interim rule to establish and 
govern the filing of Pre-1972 Schedules, the filing of contact 
information by entities publicly performing Pre-1972 Sound Recordings 
by means of digital audio transmission at the time of enactment of 
section 1401 (``Notice of Contact Information''), and the means by 
which individuals may request and receive timely notification when Pre-
1972 Schedules are indexed into the Office's public records.

A. Pre-1972 Schedules

    Under the interim rule, rights owners may file Pre-1972 Schedules 
with the Office using a form provided on the Office's website. At 
present, the form is an Excel spreadsheet template. This format is 
required so that the Office can timely ingest the Pre-1972 Schedules 
and index them into a searchable database available to prospective 
users, including persons who may otherwise wish to make noncommercial 
uses of these works, and the general public. The database of Pre-1972 
Schedules is available on the Office's website at https://copyright.gov/music-modernization/pre1972-soundrecordings/search-soundrecordings.html.
    For each sound recording, the Pre-1972 Schedule must include the 
rights owner's name, the sound recording title, and the featured 
artist. Rights owners may also include additional optional information 
pursuant to the instructions on the form and the Office's website. For 
example, the Pre-1972 Schedule may include, for each sound recording, 
album title information, any alternate sound recording title(s), the 
publication date, the label name, and the rights owner's contact 
information. A rights owner may elect to include this optional 
information on a recording-by-recording basis. In addition, the 
individual submitting the Pre-1972 Schedule must certify that she has 
appropriate authority to submit the schedule and that all information 
submitted to the Office is true, accurate, and complete to the best of 
the individual's knowledge, and is made in good faith. The Office may 
reject any Pre-1972 Schedule that fails to comply with these 
requirements or any additional requirements provided on the Office's 
website or the form itself.
    As noted above, for a rights owner to be eligible to recover 
statutory damages and/or attorneys' fees for the unauthorized use of a 
Pre-1972 Sound Recording, the use must occur at least 90 days after a 
Pre-1972 Schedule that includes the recording is ``indexed into the 
public records of the Copyright Office'' \14\ (or 90 days after a 
transmitting entity receives direct notice of unauthorized use, if 
applicable \15\). Under the interim rule, a Pre-1972 Schedule will be 
considered ``indexed'' once it is made publicly available through the 
Office's online database of Pre-1972 Schedules.
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    \14\ Id. 1401(f)(5)(A)(i)(II).
    \15\ Id. 1401(f)(5)(B)(iii)(I).

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[[Page 52152]]

    The interim rule also states that if ownership of a Pre-1972 Sound 
Recording changes after its inclusion in a Pre-1972 Schedule filed with 
the Office, the Office will consider the schedule to be effective as to 
any successor in interest. A successor in interest may, but is not 
required to file a new schedule. The Office invites public comments on 
whether it should accept transfers of rights ownership and other 
documents pertaining to a Pre-1972 Sound Recording (excluding Pre-1972 
Schedules) for recordation, even though they are not transfers of 
copyright ownership or documents pertaining to a copyright under 17 
U.S.C. 205.
    At present, the Office has not implemented a means for rights 
owners to correct limited mistakes in Pre-1972 Schedules indexed into 
the Office's public records (e.g., accidentally misspelling the title 
of a sound recording or including an errant title). Presently, rights 
owners can file a new Pre-1972 Schedule listing the sound recording for 
which incorrect information was indexed, but the original and new Pre-
1972 Schedules would coexist in the Office's database of Pre-1972 
Schedules, and each schedule would have its own index date. This 
treatment is consistent with the Copyright Office's recordation 
functions generally, although the Office is currently evaluating 
comments requesting a method for correcting errors, and has implemented 
a limited provision permitting corrections for electronic title 
lists.\16\ The Office invites public comment on whether and how to 
provide a mechanism for the correction of limited mistakes in Pre-1972 
Schedules, or adding supplemental information about a sound recording, 
including the potential effect on a Schedule's index date and how to 
keep administrative costs low.
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    \16\ See Modernizing Copyright Recordation, Interim Rule, 82 FR 
52213, 52217 (Nov. 13, 2017). The Office notes, however, that 
permitting corrections in electronic title lists (``ETL'') would 
differ from permitting corrections in Pre-1972 Schedules. An ETL is 
not considered part of the recorded document; rather an ETL is only 
used administratively to populate the Office's public record (as 
opposed to manually inputting information about the document into 
the Office's public record).
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    As required by the Music Modernization Act, the interim regulations 
also confirm that persons may request timely notification of when Pre-
1972 Schedules are indexed into the Office's public records by 
following the instructions provided by the Copyright Office on its 
website. Presently, individuals requesting such notification can 
subscribe to a weekly email through a service similar to the Office's 
NewsNet service, which will provide a link to the Office's online 
database of indexed Pre-1972 Schedules. The Office's searchable 
database defaults to listing the sound recordings with the most recent 
index dates first, so individuals should easily be able to identify 
recently indexed filings.
    As with similar types of filings made with the Office, the interim 
rule states that the Office does not review Pre-1972 Schedules for 
legal sufficiency, interpret their content, or screen them for errors 
or discrepancies.\17\ Rather, the Office's review is limited to whether 
the procedural requirements established by the Office (including 
payment of the proper filing fee) have been met. Rights owners are 
therefore cautioned to review and scrutinize schedules to assure their 
legal sufficiency before submitting them to the Office.
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    \17\ For example, the Office accepts statements of account under 
the section 111 cable license after a review for ``obvious errors or 
omissions appearing on the face of the documents'' (see 37 CFR 
201.17(c)(2)), notices of intention under the section 115 compulsory 
license without review for ``legal sufficiency'' or ``errors or 
discrepancies'' (see 37 CFR 201.18(g)), and agent designations made 
pursuant to section 512(c)(2) without any examination.
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    Regarding filing fees, the Copyright Act grants the Office 
authority to establish, adjust, and recover fees for services provided 
to the public.\18\ The Office concludes that during the interim period, 
the appropriate fee to file a Pre-1972 Schedule will be the same as the 
current fee to record a notice of intention to make and distribute 
phonorecords under section 115 (``NOI'').\19\ The Office anticipates 
that the processing of Pre-1972 Schedules will be analogous to that of 
processing electronic NOIs, and so the fee should be the same.\20\ 
There will be no fee for individuals to request and receive timely 
notifications of when Pre-1972 Schedules are indexed into the Office's 
public records.
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    \18\ See 17 U.S.C. 708.
    \19\ 37 CFR 201.3(e)(1) (stating cost to record section 115 NOI 
is $75, with an additional $10 fee per group of 1 to 100 additional 
titles for electronic filing).
    \20\ Basing the cost of a service on the cost for a similar 
service is appropriate. See Copyright Office Fees, 83 FR 24045, 
24059 (May 24, 2018) (proposing setting new fees at the same level 
for ``analogous'' services). In 2017, Booz Allen Hamilton conducted 
a study of the Office's most recent fee structure. When asked 
whether existing rates could be leveraged for new group registration 
options, it concluded it was appropriate if the work required was of 
a similar grade and compensation level. Booz Allen Hamilton, U.S. 
Copyright Office, Fee Study Question and Answers (Dec. 2017), 
https://www.copyright.gov/rulemaking/feestudy2018/fee_study_q&a.pdf.
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B. Notices of Contact Information

    Under the interim rule, transmitting entities may file a Notice of 
Contact Information with the Office using a form and instructions 
specified on the Office's website. The Office is using pay.gov to 
receive these Notices after determining that it is the best available 
method to process these filings within the six-month window permitted 
under the statute.
    The Notice of Contact Information must include the legal name, 
email address, and physical street address of the transmitting entity 
to which rights owners should send notifications of claimed violations 
of 17 U.S.C. 1401(a).\21\ Related or affiliated transmitting entities 
that are separate legal entities (e.g., corporate parents and 
subsidiaries) are considered separate transmitting entities, and each 
must file its own separate Notice of Contact Information. But the 
Notice of Contact Information may include alternate names for the 
transmitting entity that the public may use to identify a specific 
legal entity, including names under which the transmitting entity is 
doing business and other commonly used names. Separate legal entities 
are not considered alternate names. The Notice of Contact Information 
shall also include the website(s) and/or application(s) through which 
the transmitting entity publicly performs Pre-1972 Sound Recordings by 
means of digital audio transmission. Finally, the Notice of Contact 
Information must include a certification that the transmitting entity 
was publicly performing Pre-1972 Sound Recordings by means of digital 
audio transmission as of October 11, 2018, that the individual 
submitting the notice has appropriate authority to submit the notice, 
and that all information submitted to the Office is true, accurate, and 
complete to the best of the individual's knowledge, and is made in good 
faith. The Office may reject any Notice of Contact Information that 
fails to comply with these requirements or any additional requirements 
provided on the Office's website or the form itself.
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    \21\ The Office is requiring a physical street address so that 
rights owners may use delivery methods that allow for tracking and/
or delivery confirmation.
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    If an entity submits a Notice of Contact Information following the 
instructions provided by the Office, including paying the appropriate 
fee, the Office will make the Notice publicly available in a searchable 
online directory, available on the Office's website at https://
copyright.gov/music-modernization/pre1972-soundrecordings/notices-
contact-

[[Page 52153]]

information.html. If a transmitting entity includes alternate names in 
its Notice of Contact Information, users will be able to search on 
those names to locate the transmitting entity's Notice of Contact 
Information.
    The Office concludes that during the interim period, the 
appropriate fee to file a Notice of Contact Information will be similar 
to the fee previously in effect for service providers to designate an 
agent to receive notifications of claimed copyright infringement under 
17 U.S.C. 512(c).\22\ The Office anticipates that the processing of 
Notices of Contact Information will be analogous to how designations of 
agents were processed prior to the existing Digital Millennium 
Copyright Act (``DMCA'') designated agent directory.\23\ Following that 
model, the interim rule assesses an additional cost to process 
alternate names submitted by the transmitting entity.\24\
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    \22\ 37 CFR 201.3(c)(17) (2016) (cost of $105 to record 
designation of agent under section 512(c)(2), with additional $35 
fee per group of 1 to 10 additional names). In 2016, the Office 
launched a new database to designate an agent, which required less 
Office processing and so the Office lowered the filing fee to $6. 37 
CFR 201.3(c)(17) (2017).
    \23\ See Old Directory of DMCA Designated Agents 1998-2016, U.S. 
Copyright Office, https://www.copyright.gov/onlinesp/list/a_agents.html.
    \24\ Because of the time sensitivity regarding the processing of 
Notices of Contact Information and additional work required by the 
Office, the additional cost will be $35 per alternate name listed.
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III. Request for Comments

    These interim regulations will go into effect immediately after 
publication of this document in the Federal Register. Comments will be 
due 30 days thereafter. The Copyright Office is issuing these interim 
regulations after finding, for good cause, that notice and public 
procedure prior to their issuance would be impracticable and contrary 
to the public interest.\25\ The MMA requires swift action by the 
Office. The Office must issue regulations regarding the filing of 
Notices of Contact Information within 30 days of enactment, and 
transmitting entities have only 180 days within which they may file 
these Notices.\26\ Similarly, while the Office has 180 days to 
establish regulations regarding the form and submission of Pre-1972 
Schedules, this filing serves as a gating factor to rights owners being 
eligible for statutory damages and/or attorneys' fees for unauthorized 
uses of Pre-1972 Sound Recordings, as well as the ability of persons to 
search these schedules before determining whether a given sound 
recording is being commercialized or is available for the noncommercial 
use exception.\27\ The interim rule will also inform the Office's 
concurrent rulemaking regarding the criteria for a good faith search to 
make use of the exception for noncommercial uses of sound 
recordings.\28\ The Office concludes that a prompt interim rule best 
serves the legal interests of all relevant stakeholders as well as the 
general public. Thus, notice and comment is not required under the 
Administrative Procedure Act.\29\
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    \25\ In the past, the Copyright Office has similarly issued 
interim rules upon the enactment of legislation before soliciting 
public comments. See, e.g., Freedom of Information Act Regulations, 
82 FR 9505, 9506 (Feb. 7, 2017) (issuing interim rule to implement 
the FOIA Improvements Act because ``allowing for notice and public 
procedure prior to the issuance of . . . interim regulations would 
be impracticable''); Designation of Agent to Receive Notification of 
Claimed Infringement, 63 FR 59233, 59234 (Nov. 3, 1998) (issuing 
interim rule regarding designation of agent after enactment of the 
DMCA because ``online service providers may wish immediately to 
designate agents to receive notification of claimed infringement'').
    \26\ 17 U.S.C. 1401(f)(5)(B).
    \27\ Id. 1401(c)(1)(A), (f)(5)(A).
    \28\ Id. 1401(c)(1)(A).
    \29\ See 5 U.S.C. 553(b), (d)(3); Phila. Citizen in Action v. 
Schweiker, 669 F.2d 877, 884-85 (3d Cir. 1982).
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List of Subjects in 37 CFR Part 201

    Copyright, General provisions.

Interim Regulations

    For the reasons set forth in the preamble, the Copyright Office 
amends 37 CFR part 201 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 as follows:
0
a. Redesignate paragraphs (c)(19) and (20) as paragraphs (c)(21) and 
(22), respectively.
0
b. Add new paragraphs (c)(19) and (20) to read as follows:


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

* * * * *
    (c) * * *

------------------------------------------------------------------------
        Registration, recordation and related services          Fees ($)
------------------------------------------------------------------------
 
                              * * * * * * *
(19) Notice of contact information for transmitting entities         105
 publicly performing pre-1972 sound recordings by means of
 digital audio transmission, or amendment of contact
 information.................................................
Alternate names (each).......................................         35
(20) Schedule of pre-1972 sound recordings (single title)....         75
Additional titles (per group of 1 to 100 titles).............         10
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *

0
3. Amend Sec.  201.4 by adding paragraphs (b)(12) and (13) to read as 
follows:


Sec.  201.4  Recordation of transfers and other documents pertaining to 
copyright.

* * * * *
    (b) * * *
    (12) Notices of contact information for transmitting entities 
publicly performing pre-1972 sound recordings by means of digital audio 
transmission (17 U.S.C. 1401(f)(5)(B); see Sec.  201.36).
    (13) Schedules of pre-1972 sound recordings (17 U.S.C. 
1401(f)(5)(A); see Sec.  201.35).
* * * * *

0
4. Add Sec.  201.35 to read as follows:


Sec.  201.35  Schedules of pre-1972 sound recordings.

    (a) General. This section prescribes the rules under which rights 
owners, pursuant to 17 U.S.C. 1401(f)(5)(A), may file schedules listing 
their pre-1972 sound recordings with the Copyright Office to be 
eligible for statutory damages and/or attorneys' fees for violations of 
17 U.S.C. 1401(a).
    (b) Definitions. For purposes of this section:
    (1) Unless otherwise specified, the terms used have the meanings 
set forth in 17 U.S.C. 1401.

[[Page 52154]]

    (2) A pre-1972 sound recording is a sound recording fixed before 
February 15, 1972.
    (c) Form and submission. A rights owner seeking to comply with 17 
U.S.C. 1401(f)(5)(A) must submit a schedule listing the owner's pre-
1972 sound recordings using an appropriate form provided by the 
Copyright Office on its website and following the instructions for 
completion and submission provided on the Office's website or the form 
itself. The Office may reject any submission that fails to comply with 
these requirements.
    (d) Content. A schedule of pre-1972 sound recordings shall contain 
the following:
    (1) For each sound recording listed, the right's owner name, sound 
recording title, and featured artist;
    (2) A certification that the individual submitting the schedule of 
pre-1972 sound recordings has appropriate authority to submit the 
schedule and that all information submitted to the Office is true, 
accurate, and complete to the best of the individual's knowledge, 
information, and belief, and is made in good faith.
    (3) For each sound recording listed, the rights owner may opt to 
include additional information as permitted and in the format specified 
by the Office's form or instructions, such as publication date, or 
alternate title information.
    (e) Transfer of rights ownership. If ownership of a pre-1972 sound 
recording changes after its inclusion in a schedule filed with the 
Office under this section, the Office will consider the schedule to be 
effective as to any successor in interest. A successor in interest may, 
but is not required, to file a new schedule under this section.
    (f) Legal sufficiency of schedules. The Copyright Office does not 
review schedules submitted under paragraph (c) of this section for 
legal sufficiency, interpret their content, or screen them for errors 
or discrepancies. The Office's review is limited to whether the 
procedural requirements established by the Office (including payment of 
the proper filing fee) have been met. Rights owners are therefore 
cautioned to review and scrutinize schedules to assure their legal 
sufficiency before submitting them to the Office.
    (g) Filing date. The date of filing of a schedule of pre-1972 sound 
recordings is the date when a proper submission, including the 
prescribed fee, is received in the Copyright Office. The filing date 
may not necessarily be the same date that the schedule, for purposes of 
17 U.S.C. 1401(f)(5)(A)(i)(II), is indexed into the Office's public 
records.
    (h) Fee. The filing fee to submit a schedule of pre-1972 sound 
recordings pursuant to this section is prescribed in Sec.  201.3(c).
    (i) Third-party notification. A person may request timely 
notification of filings made under this section by following the 
instructions provided by the Copyright Office on its website.

0
5. Add Sec.  201.36 to read as follows:


Sec.  201.36  Notices of contact information for transmitting entities 
publicly performing pre-1972 sound recordings.

    (a) General. This section prescribes the rules under which 
transmitting entities may file contact information with the Copyright 
Office pursuant to 17 U.S.C. 1401(f)(5)(B).
    (b) Definitions. For purposes of this section:
    (1) Unless otherwise specified, the terms used have the meanings 
set forth in 17 U.S.C. 1401.
    (2) A pre-1972 sound recording is a sound recording fixed before 
February 15, 1972.
    (3) A transmitting entity is an entity that, as of October 11, 
2018, publicly performs pre-1972 sound recordings by means of digital 
audio transmission.
    (c) Form and submission. A transmitting entity seeking to comply 
with 17 U.S.C. 1401(f)(5)(B) must submit contact information using an 
appropriate form specified by the Copyright Office on its website and 
following the instructions for completion and submission provided on 
the Office's website or the form itself. The Office may reject any 
submission that fails to comply with these requirements. No notice or 
amended notice received after April 9, 2019 will be accepted by the 
Office.
    (d) Content. A notice submitted under paragraph (c) of this section 
shall contain the following, in addition to any other information 
required on the Office's form or website:
    (1) The full legal name, email address, and physical street address 
of the transmitting entity to which rights owners should send 
notifications of claimed violations of 17 U.S.C. 1401(a). A post office 
box may not be substituted for the street address of a transmitting 
entity. Related or affiliated transmitting entities that are separate 
legal entities (e.g., corporate parents and subsidiaries) are 
considered separate transmitting entities, and each must file its own 
separate notice of contact information.
    (2) The website(s) and/or application(s) through which the 
transmitting entity publicly performs pre-1972 sound recordings by 
means of digital audio transmission.
    (3) A certification that the transmitting entity was publicly 
performing pre-1972 sound recordings by means of digital audio 
transmission as of October 11, 2018.
    (4) A certification that the individual submitting the notice has 
appropriate authority to submit the notice and that all information 
submitted to the Office is true, accurate, and complete to the best of 
the individual's knowledge, information, and belief, and is made in 
good faith.
    (5) The transmitting entity may opt to include alternate names for 
which the transmitting entity seeks application of 17 U.S.C. 
1401(f)(5)(B)(iii), such as names that the public would be likely to 
use to search for the transmitting entity in the Copyright Office's 
online directory of transmitting entities publicly performing pre-1972 
sound recordings by means of digital audio transmission, including 
names under which the transmitting entity is doing business and other 
commonly used names. Separate legal entities are not considered 
alternate names.
    (e) Fee. The filing fee to submit a notice of contact information 
pursuant to this section is prescribed in Sec.  201.3(c).

    Dated: October 11, 2018.
Karyn A. Temple,
Acting Register of Copyrights and Director of the U.S. Copyright 
Office.

    Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2018-22518 Filed 10-15-18; 8:45 am]
 BILLING CODE 1410-30-P

52150 Federal Register / Vol. 83, No. 200 / Tuesday, October 16, 2018 / Rules and Regulations We also have determined that this your search to documents published by Interim rule with request for ACTION: regulatory action does not unduly the Department. comments. interfere with State, local, and Tribal List of Subjects SUMMARY: The U.S. Copyright Office is governments in the exercise of their governmental functions. 34 CFR Part 611 issuing interim regulations pursuant to In accordance with both Executive the Classics Protection and Access Act, Colleges and universities, Elementary title II of the recently enacted Orrin G. orders, the Department has assessed the and secondary education, Grant potential costs and benefits, both Hatch-Bob Goodlatte Music programs-education. Modernization Act. These regulations quantitative and qualitative, of this regulatory action. Because the rescinded 34 CFR Part 614 pertain to the filing of schedules by regulations are obsolete, we do not rights owners listing their sound Grant programs-education, colleges believe that this action will result in any recordings fixed before February 15, and universities. additional costs or benefits. 1972, and the filing of contact Dated: October 10, 2018. information by entities publicly Regulatory Flexibility Act Certification Diane Auer Jones, performing these sound recordings by Pursuant to 5 U.S.C. 601(2), the Principal Deputy Under Secretary Delegated means of digital audio transmission. As to Perform the Duties of Under Secretary and required under the Act, the Office is Regulatory Flexibility Act applies only Assistant Secretary for the Office of to rules for which an agency publishes also specifying how individuals may Postsecondary Education. request timely notification of the filing a general notice of proposed rulemaking. The Regulatory Flexibility For the reasons discussed in the of such schedules with the Office. These Act does not apply to this rulemaking preamble, and under the authority at 20 regulations are issued on an interim because there is good cause to waive U.S.C. 3474 and 20 U.S.C. 1221e–3, the basis with opportunity for comment to notice and comment under 5 U.S.C. 553. Secretary amends chapter VI of title 34 comply with statutory requirements and of the Code of Federal Regulations as to ensure that both rights owners and Paperwork Reduction Act of 1995 follows: transmitting entities can promptly make These regulations do not contain any use of these new filing mechanisms to PART 611—[Removed] protect their respective legal interests. information collection requirements. The Office welcomes comment on these Intergovernmental Review ■ 1. Part 611 is removed. interim rules. These programs are subject to PART 614—[Removed] DATES: The effective date of the interim Executive Order 12372 and the regulations is October 16, 2018. Written regulations in 34 CFR part 79. One of ■ 2. Part 614 is removed. comments must be received no later the objectives of the Executive order is than 11:59 p.m. Eastern Time on PART 636—[Removed] November 15, 2018. to foster an intergovernmental partnership and a strengthened ■ 3. Reserved part 636 is removed. ADDRESSES: For reasons of government federalism. The Executive order relies efficiency, the Copyright Office is using on processes developed by State and PART 649—[Removed] the regulations.gov system for the local governments for coordination and submission and posting of public review of proposed Federal financial ■ 4. Reserved part 649 is removed. comments in this proceeding. All assistance. comments are therefore to be submitted PART 680—[Removed] electronically through regulations.gov. Accessible Format: Individuals with disabilities can obtain this document in ■ 5. Reserved part 680 is removed. Specific instructions for submitting an accessible format (e.g., Braille, large comments are available on the print, audiotape, or compact disc) on PART 693—[Removed] Copyright Office’s website at https:// request to the contact person listed www.copyright.gov/rulemaking/ under FOR FURTHER INFORMATION ■ 6. Reserved part 693 is removed. pre1972-soundrecordings-schedules/. If CONTACT. electronic submission of comments is PARTS 695–699—[REMOVED] not feasible due to lack of access to a Electronic Access to This Document: The official version of this document is ■ 7. Reserved parts 695–699 are computer and/or the internet, please the document published in the Federal removed. contact the Office using the contact Register. You may access the official information below for special [FR Doc. 2018–22413 Filed 10–15–18; 8:45 am] edition of the Federal Register and the instructions. BILLING CODE 4000–01–P Code of Federal Regulations via the FOR FURTHER INFORMATION CONTACT: Federal Digital System at: www.gpo.gov/ Regan A. Smith, General Counsel and fdsys. At this site you can view this Associate Register of Copyrights, by LIBRARY OF CONGRESS document, as well as all other email at regans@copyright.gov, Anna documents of this Department Copyright Office Chauvet, Assistant General Counsel, by published in the Federal Register, in email at achau@copyright.gov, or Jason text or Portable Document Format 37 CFR Part 201 E. Sloan, Assistant General Counsel, by (PDF). To use PDF you must have email at jslo@copyright.gov. Each can be Adobe Acrobat Reader, which is [Docket No. 2018–7] contacted by telephone by calling (202) available free at the site. 707–8350. amozie on DSK3GDR082PROD with RULES Filing of Schedules by Rights Owners You may also access documents of the SUPPLEMENTARY INFORMATION: and Contact Information by Department published in the Federal Transmitting Entities Relating to Pre- I. Background Register by using the article search 1972 Sound Recordings feature at: www.federalregister.gov. On October 11, 2018, the president Specifically, through the advanced AGENCY: U.S. Copyright Office, Library signed into law the Orrin G. Hatch-Bob search feature at this site, you can limit of Congress. Goodlatte Music Modernization Act, VerDate Sep<11>2014 16:24 Oct 15, 2018 Jkt 247001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\16OCR1.SGM 16OCR1

Federal Register / Vol. 83, No. 200 / Tuesday, October 16, 2018 / Rules and Regulations 52151 H.R. 1551 (‘‘MMA’’). Title II of the when such filings are indexed into the Schedules are indexed into the Office’s MMA, the Classics Protection and Office’s public record.7 public records. Access Act, created chapter 14 of the In addition, rights owners must A. Pre-1972 Schedules copyright law, title 17, United States provide specific notice of unauthorized Code, which, among other things, use to certain entities that were Under the interim rule, rights owners extends remedies for copyright previously transmitting Pre-1972 Sound may file Pre-1972 Schedules with the infringement to owners of sound Recordings, before pursuing certain Office using a form provided on the recordings fixed before February 15, remedies against them. To be entitled to Office’s website. At present, the form is 1972 (‘‘Pre-1972 Sound Recordings’’). receive direct notice of unauthorized an Excel spreadsheet template. This Under the provision, rights owners may activity from a rights owner, an entity format is required so that the Office can be eligible to recover statutory damages must have been publicly performing a timely ingest the Pre-1972 Schedules and/or attorneys’ fees for the Pre-1972 Sound Recording by means of and index them into a searchable unauthorized use of their Pre-1972 digital audio transmission at the time of database available to prospective users, Sound Recordings if certain enactment of section 1401 and must file including persons who may otherwise requirements are met. its contact information with the wish to make noncommercial uses of Specifically, to be eligible for these Copyright Office within 180 days of these works, and the general public. The remedies, rights owners must typically enactment, that is, by April 9, 2019.8 database of Pre-1972 Schedules is file schedules listing their Pre-1972 Where a valid notice of contact available on the Office’s website at Sound Recordings (‘‘Pre-1972 information has been filed, the rights https://copyright.gov/music- Schedules’’) with the U.S. Copyright owner may be eligible to obtain modernization/pre1972- Office (the ‘‘Office’’), which are then statutory damages and/or attorneys’ fees soundrecordings/search- indexed into the Office’s public only after sending the transmitting soundrecordings.html. records.1 The remedies are only entity a notice stating that it is not For each sound recording, the Pre- available for unauthorized uses of a legally authorized to use the Pre-1972 1972 Schedule must include the rights recording that have occurred more than Sound Recording, and identifying the owner’s name, the sound recording title, 90 days after indexing.2 Pre-1972 Pre-1972 Sound Recording in a schedule and the featured artist. Rights owners Schedules must include the name of the conforming to the requirements by the may also include additional optional rights owner, title, and featured artist for Office for filing Pre-1972 Schedules.9 In information pursuant to the instructions each recording listed, and ‘‘such other addition, the unauthorized use must on the form and the Office’s website. information, as practicable, that the have occurred 90 days after the entity For example, the Pre-1972 Schedule Register of Copyrights prescribes by receives the notice.10 After April 9, may include, for each sound recording, regulation.’’ 3 The filing requirement ‘‘is 2019, the Office cannot accept any new album title information, any alternate designed to operate in place of a formal filings of contact information by sound recording title(s), the publication registration requirement that normally transmitting entities.11 For any eligible date, the label name, and the rights applies to claims involving statutory transmitting entity that does not file its owner’s contact information. A rights damages.’’ 4 In addition, the Pre-1972 contact information by April 9, 2019, owner may elect to include this optional Schedules are important to the Act’s rights owners are not obligated to send information on a recording-by-recording new exemption for noncommercial uses it a direct notice of unauthorized use basis. In addition, the individual of Pre-1972 Sound Recordings that are prior to becoming eligible for statutory not being commercially exploited.5 submitting the Pre-1972 Schedule must damages and/or attorneys’ fees.12 certify that she has appropriate Under that provision, persons seeking to Rather, as described above, rights authority to submit the schedule and use the exemption are exempt from owners would file Pre-1972 Schedules that all information submitted to the liability for unauthorized use if they with the Copyright Office, and they Office is true, accurate, and complete to make a ‘‘good faith, reasonable search would become eligible for these the best of the individual’s knowledge, for’’ a given sound recording in the remedies for unauthorized uses of a and is made in good faith. The Office Office’s records of Pre-1972 Schedules recording occurring more than 90 days may reject any Pre-1972 Schedule that before determining that the recording is after indexing of the schedules.13 fails to comply with these requirements not being commercially exploited.6 In establishing a filing mechanism for Pre- II. Interim Rule or any additional requirements provided 1972 Schedules, the Office must also on the Office’s website or the form itself. The Office promulgates the following As noted above, for a rights owner to provide a means for individuals to interim rule to establish and govern the be eligible to recover statutory damages request and receive timely notification filing of Pre-1972 Schedules, the filing and/or attorneys’ fees for the 1 17 of contact information by entities unauthorized use of a Pre-1972 Sound U.S.C. 1401(f)(5)(A)(i)(I)–(II). 2 Id. 1401(f)(5)(A)(i)(II). publicly performing Pre-1972 Sound Recording, the use must occur at least 3 Id. 1401(f)(5)(A)(i)(I). Recordings by means of digital audio 90 days after a Pre-1972 Schedule that 4 H.R. Rep. No. 115–651, at 16 (2018); see S. Rep. transmission at the time of enactment of includes the recording is ‘‘indexed into No. 115–339, at 18 (2018); 17 U.S.C. 412 (stating section 1401 (‘‘Notice of Contact the public records of the Copyright that generally ‘‘no award of statutory damages or of Information’’), and the means by which attorney’s fees . . . Shall be made for . . . any Office’’ 14 (or 90 days after a transmitting infringement of copyright in an unpublished work individuals may request and receive entity receives direct notice of commenced before the effective date of its timely notification when Pre-1972 unauthorized use, if applicable 15). registration’’ or ‘‘any infringement of copyright commenced after first publication of the work and Under the interim rule, a Pre-1972 7 Id.1401(f)(5)(A)(ii)(II)–(III). Schedule will be considered ‘‘indexed’’ amozie on DSK3GDR082PROD with RULES before the effective date of its registration, unless 8 Id. such registration is made within three months after 1401(f)(5)(B)(i)–(ii). once it is made publicly available 9 Id. 1401(f)(5)(B)(iii). the first publication of the work’’). through the Office’s online database of 5 17 U.S.C. 1401(c)(1)(A)(i). The Copyright Office 10 Id. 1401(f)(5)(B)(iii)(I). 11 Id. 1401(f)(5)(B)(ii). Pre-1972 Schedules. is separately issuing a notice of inquiry related to regulations the Register must promulgate regarding 12 H.R. Rep. No. 115–651, at 16 (2018); see S. Rep. this exception. See id. 1401(c)(3), (5)(A). No. 115–339, at 19 (2018). 14 Id. 1401(f)(5)(A)(i)(II). 6 Id. 1401(c)(1)(A). 13 17 U.S.C. 1401(f)(5)(A). 15 Id. 1401(f)(5)(B)(iii)(I). VerDate Sep<11>2014 16:24 Oct 15, 2018 Jkt 247001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\16OCR1.SGM 16OCR1

52152 Federal Register / Vol. 83, No. 200 / Tuesday, October 16, 2018 / Rules and Regulations The interim rule also states that if a service similar to the Office’s NewsNet B. Notices of Contact Information ownership of a Pre-1972 Sound service, which will provide a link to the Under the interim rule, transmitting Recording changes after its inclusion in Office’s online database of indexed Pre- entities may file a Notice of Contact a Pre-1972 Schedule filed with the 1972 Schedules. The Office’s searchable Information with the Office using a form Office, the Office will consider the database defaults to listing the sound and instructions specified on the schedule to be effective as to any recordings with the most recent index Office’s website. The Office is using successor in interest. A successor in dates first, so individuals should easily pay.gov to receive these Notices after interest may, but is not required to file be able to identify recently indexed determining that it is the best available a new schedule. The Office invites filings. method to process these filings within public comments on whether it should the six-month window permitted under accept transfers of rights ownership and As with similar types of filings made with the Office, the interim rule states the statute. other documents pertaining to a Pre- The Notice of Contact Information 1972 Sound Recording (excluding Pre- that the Office does not review Pre-1972 Schedules for legal sufficiency, interpret must include the legal name, email 1972 Schedules) for recordation, even address, and physical street address of though they are not transfers of their content, or screen them for errors the transmitting entity to which rights copyright ownership or documents or discrepancies.17 Rather, the Office’s owners should send notifications of pertaining to a copyright under 17 review is limited to whether the claimed violations of 17 U.S.C. U.S.C. 205. procedural requirements established by 1401(a).21 Related or affiliated At present, the Office has not the Office (including payment of the transmitting entities that are separate implemented a means for rights owners proper filing fee) have been met. Rights legal entities (e.g., corporate parents and to correct limited mistakes in Pre-1972 owners are therefore cautioned to subsidiaries) are considered separate Schedules indexed into the Office’s review and scrutinize schedules to transmitting entities, and each must file public records (e.g., accidentally assure their legal sufficiency before its own separate Notice of Contact misspelling the title of a sound submitting them to the Office. Information. But the Notice of Contact recording or including an errant title). Regarding filing fees, the Copyright Information may include alternate Presently, rights owners can file a new Act grants the Office authority to names for the transmitting entity that Pre-1972 Schedule listing the sound establish, adjust, and recover fees for the public may use to identify a specific recording for which incorrect legal entity, including names under services provided to the public.18 The information was indexed, but the which the transmitting entity is doing Office concludes that during the interim original and new Pre-1972 Schedules business and other commonly used period, the appropriate fee to file a Pre- would coexist in the Office’s database of names. Separate legal entities are not Pre-1972 Schedules, and each schedule 1972 Schedule will be the same as the current fee to record a notice of considered alternate names. The Notice would have its own index date. This of Contact Information shall also treatment is consistent with the intention to make and distribute phonorecords under section 115 include the website(s) and/or Copyright Office’s recordation functions application(s) through which the generally, although the Office is (‘‘NOI’’).19 The Office anticipates that the processing of Pre-1972 Schedules transmitting entity publicly performs currently evaluating comments Pre-1972 Sound Recordings by means of requesting a method for correcting will be analogous to that of processing electronic NOIs, and so the fee should digital audio transmission. Finally, the errors, and has implemented a limited Notice of Contact Information must provision permitting corrections for be the same.20 There will be no fee for include a certification that the electronic title lists.16 The Office invites individuals to request and receive transmitting entity was publicly public comment on whether and how to timely notifications of when Pre-1972 performing Pre-1972 Sound Recordings provide a mechanism for the correction Schedules are indexed into the Office’s by means of digital audio transmission of limited mistakes in Pre-1972 public records. as of October 11, 2018, that the Schedules, or adding supplemental individual submitting the notice has information about a sound recording, 17 For example, the Office accepts statements of appropriate authority to submit the including the potential effect on a account under the section 111 cable license after a review for ‘‘obvious errors or omissions appearing notice, and that all information Schedule’s index date and how to keep on the face of the documents’’ (see 37 CFR submitted to the Office is true, accurate, administrative costs low. 201.17(c)(2)), notices of intention under the section and complete to the best of the As required by the Music 115 compulsory license without review for ‘‘legal individual’s knowledge, and is made in Modernization Act, the interim sufficiency’’ or ‘‘errors or discrepancies’’ (see 37 good faith. The Office may reject any regulations also confirm that persons CFR 201.18(g)), and agent designations made pursuant to section 512(c)(2) without any Notice of Contact Information that fails may request timely notification of when examination. to comply with these requirements or Pre-1972 Schedules are indexed into the 18 See 17 U.S.C. 708. any additional requirements provided Office’s public records by following the 19 37 CFR 201.3(e)(1) (stating cost to record on the Office’s website or the form itself. instructions provided by the Copyright section 115 NOI is $75, with an additional $10 fee If an entity submits a Notice of Office on its website. Presently, per group of 1 to 100 additional titles for electronic filing). Contact Information following the individuals requesting such notification 20 Basing the cost of a service on the cost for a instructions provided by the Office, can subscribe to a weekly email through similar service is appropriate. See Copyright Office including paying the appropriate fee, Fees, 83 FR 24045, 24059 (May 24, 2018) (proposing the Office will make the Notice publicly 16 See Modernizing Copyright Recordation, setting new fees at the same level for ‘‘analogous’’ Interim Rule, 82 FR 52213, 52217 (Nov. 13, 2017). services). In 2017, Booz Allen Hamilton conducted available in a searchable online The Office notes, however, that permitting a study of the Office’s most recent fee structure. directory, available on the Office’s amozie on DSK3GDR082PROD with RULES corrections in electronic title lists (‘‘ETL’’) would When asked whether existing rates could be website at https://copyright.gov/music- differ from permitting corrections in Pre-1972 leveraged for new group registration options, it modernization/pre1972- Schedules. An ETL is not considered part of the concluded it was appropriate if the work required recorded document; rather an ETL is only used was of a similar grade and compensation level. soundrecordings/notices-contact- administratively to populate the Office’s public Booz Allen Hamilton, U.S. Copyright Office, Fee record (as opposed to manually inputting Study Question and Answers (Dec. 2017), https:// 21 The Office is requiring a physical street address information about the document into the Office’s www.copyright.gov/rulemaking/feestudy2018/fee_ so that rights owners may use delivery methods that public record). study_q&a.pdf. allow for tracking and/or delivery confirmation. VerDate Sep<11>2014 16:24 Oct 15, 2018 Jkt 247001 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\16OCR1.SGM 16OCR1

Federal Register / Vol. 83, No. 200 / Tuesday, October 16, 2018 / Rules and Regulations 52153 information.html. If a transmitting finding, for good cause, that notice and relevant stakeholders as well as the entity includes alternate names in its public procedure prior to their issuance general public. Thus, notice and Notice of Contact Information, users would be impracticable and contrary to comment is not required under the will be able to search on those names to the public interest.25 The MMA requires Administrative Procedure Act.29 locate the transmitting entity’s Notice of swift action by the Office. The Office Contact Information. List of Subjects in 37 CFR Part 201 must issue regulations regarding the The Office concludes that during the filing of Notices of Contact Information Copyright, General provisions. interim period, the appropriate fee to within 30 days of enactment, and file a Notice of Contact Information will Interim Regulations transmitting entities have only 180 days be similar to the fee previously in effect within which they may file these For the reasons set forth in the for service providers to designate an Notices.26 Similarly, while the Office preamble, the Copyright Office amends agent to receive notifications of claimed has 180 days to establish regulations 37 CFR part 201 as follows: copyright infringement under 17 U.S.C. regarding the form and submission of PART 201—GENERAL PROVISIONS 512(c).22 The Office anticipates that the Pre-1972 Schedules, this filing serves as processing of Notices of Contact a gating factor to rights owners being ■ 1. The authority citation for part 201 Information will be analogous to how eligible for statutory damages and/or continues to read as follows: designations of agents were processed attorneys’ fees for unauthorized uses of Authority: 17 U.S.C. 702. prior to the existing Digital Millennium Copyright Act (‘‘DMCA’’) designated Pre-1972 Sound Recordings, as well as the ability of persons to search these ■ 2. Amend § 201.3 as follows: agent directory.23 Following that model, ■ a. Redesignate paragraphs (c)(19) and the interim rule assesses an additional schedules before determining whether a given sound recording is being (20) as paragraphs (c)(21) and (22), cost to process alternate names respectively. submitted by the transmitting entity.24 commercialized or is available for the ■ b. Add new paragraphs (c)(19) and noncommercial use exception.27 The III. Request for Comments interim rule will also inform the Office’s (20) to read as follows: These interim regulations will go into concurrent rulemaking regarding the § 201.3 Fees for registration, recordation, effect immediately after publication of criteria for a good faith search to make and related services, special services, and this document in the Federal Register. use of the exception for noncommercial services performed by the Licensing Comments will be due 30 days uses of sound recordings.28 The Office Division. thereafter. The Copyright Office is concludes that a prompt interim rule * * * * * issuing these interim regulations after best serves the legal interests of all (c) * * * Fees Registration, recordation and related services ($) * * * * * * * (19) Notice of contact information for transmitting entities publicly performing pre-1972 sound recordings by means of digital audio transmission, or amendment of contact information ................................................................................................................................ 105 Alternate names (each) ............................................................................................................................................................................... 35 (20) Schedule of pre-1972 sound recordings (single title) .......................................................................................................................... 75 Additional titles (per group of 1 to 100 titles) .............................................................................................................................................. 10 * * * * * * * * * * * * by means of digital audio transmission pursuant to 17 U.S.C. 1401(f)(5)(A), may ■ 3. Amend § 201.4 by adding (17 U.S.C. 1401(f)(5)(B); see § 201.36). file schedules listing their pre-1972 paragraphs (b)(12) and (13) to read as (13) Schedules of pre-1972 sound sound recordings with the Copyright follows: recordings (17 U.S.C. 1401(f)(5)(A); see Office to be eligible for statutory § 201.35). damages and/or attorneys’ fees for § 201.4 Recordation of transfers and other * * * * * violations of 17 U.S.C. 1401(a). documents pertaining to copyright. ■ 4. Add § 201.35 to read as follows: (b) Definitions. For purposes of this * * * * * section: (b) * * * § 201.35 Schedules of pre-1972 sound recordings. (1) Unless otherwise specified, the (12) Notices of contact information for terms used have the meanings set forth transmitting entities publicly (a) General. This section prescribes in 17 U.S.C. 1401. performing pre-1972 sound recordings the rules under which rights owners, 22 37 CFR 201.3(c)(17) (2016) (cost of $105 to additional work required by the Office, the Notification of Claimed Infringement, 63 FR 59233, record designation of agent under section 512(c)(2), additional cost will be $35 per alternate name 59234 (Nov. 3, 1998) (issuing interim rule regarding with additional $35 fee per group of 1 to 10 listed. designation of agent after enactment of the DMCA additional names). In 2016, the Office launched a 25 In the past, the Copyright Office has similarly because ‘‘online service providers may wish new database to designate an agent, which required immediately to designate agents to receive amozie on DSK3GDR082PROD with RULES issued interim rules upon the enactment of less Office processing and so the Office lowered the legislation before soliciting public comments. See, notification of claimed infringement’’). filing fee to $6. 37 CFR 201.3(c)(17) (2017). 26 17 U.S.C. 1401(f)(5)(B). e.g., Freedom of Information Act Regulations, 82 FR 23 See Old Directory of DMCA Designated Agents 27 Id. 1401(c)(1)(A), (f)(5)(A). 9505, 9506 (Feb. 7, 2017) (issuing interim rule to 1998–2016, U.S. Copyright Office, https:// implement the FOIA Improvements Act because 28 Id. 1401(c)(1)(A). www.copyright.gov/onlinesp/list/a_agents.html. ‘‘allowing for notice and public procedure prior to 29 See 5 U.S.C. 553(b), (d)(3); Phila. Citizen in 24 Because of the time sensitivity regarding the the issuance of . . . interim regulations would be Action v. Schweiker, 669 F.2d 877, 884–85 (3d Cir. processing of Notices of Contact Information and impracticable’’); Designation of Agent to Receive 1982). VerDate Sep<11>2014 16:24 Oct 15, 2018 Jkt 247001 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 E:\FR\FM\16OCR1.SGM 16OCR1

52154 Federal Register / Vol. 83, No. 200 / Tuesday, October 16, 2018 / Rules and Regulations (2) A pre-1972 sound recording is a (h) Fee. The filing fee to submit a (3) A certification that the sound recording fixed before February schedule of pre-1972 sound recordings transmitting entity was publicly 15, 1972. pursuant to this section is prescribed in performing pre-1972 sound recordings (c) Form and submission. A rights § 201.3(c). by means of digital audio transmission owner seeking to comply with 17 U.S.C. (i) Third-party notification. A person as of October 11, 2018. 1401(f)(5)(A) must submit a schedule may request timely notification of (4) A certification that the individual listing the owner’s pre-1972 sound filings made under this section by submitting the notice has appropriate recordings using an appropriate form following the instructions provided by authority to submit the notice and that provided by the Copyright Office on its the Copyright Office on its website. all information submitted to the Office website and following the instructions ■ 5. Add § 201.36 to read as follows: is true, accurate, and complete to the for completion and submission best of the individual’s knowledge, provided on the Office’s website or the § 201.36 Notices of contact information for information, and belief, and is made in form itself. The Office may reject any transmitting entities publicly performing good faith. submission that fails to comply with pre-1972 sound recordings. (5) The transmitting entity may opt to these requirements. (a) General. This section prescribes include alternate names for which the (d) Content. A schedule of pre-1972 the rules under which transmitting transmitting entity seeks application of sound recordings shall contain the entities may file contact information 17 U.S.C. 1401(f)(5)(B)(iii), such as following: with the Copyright Office pursuant to 17 names that the public would be likely (1) For each sound recording listed, U.S.C. 1401(f)(5)(B). to use to search for the transmitting the right’s owner name, sound recording (b) Definitions. For purposes of this entity in the Copyright Office’s online title, and featured artist; section: directory of transmitting entities (2) A certification that the individual (1) Unless otherwise specified, the publicly performing pre-1972 sound submitting the schedule of pre-1972 terms used have the meanings set forth recordings by means of digital audio sound recordings has appropriate in 17 U.S.C. 1401. transmission, including names under authority to submit the schedule and (2) A pre-1972 sound recording is a which the transmitting entity is doing that all information submitted to the sound recording fixed before February business and other commonly used Office is true, accurate, and complete to 15, 1972. names. Separate legal entities are not the best of the individual’s knowledge, (3) A transmitting entity is an entity considered alternate names. information, and belief, and is made in that, as of October 11, 2018, publicly (e) Fee. The filing fee to submit a good faith. performs pre-1972 sound recordings by notice of contact information pursuant (3) For each sound recording listed, means of digital audio transmission. to this section is prescribed in the rights owner may opt to include (c) Form and submission. A § 201.3(c). additional information as permitted and transmitting entity seeking to comply Dated: October 11, 2018. in the format specified by the Office’s with 17 U.S.C. 1401(f)(5)(B) must Karyn A. Temple, form or instructions, such as publication submit contact information using an Acting Register of Copyrights and Director date, or alternate title information. appropriate form specified by the of the U.S. Copyright Office. (e) Transfer of rights ownership. If Copyright Office on its website and Approved by: ownership of a pre-1972 sound following the instructions for completion and submission provided on Carla D. Hayden, recording changes after its inclusion in a schedule filed with the Office under the Office’s website or the form itself. Librarian of Congress. this section, the Office will consider the The Office may reject any submission [FR Doc. 2018–22518 Filed 10–15–18; 8:45 am] schedule to be effective as to any that fails to comply with these BILLING CODE 1410–30–P successor in interest. A successor in requirements. No notice or amended interest may, but is not required, to file notice received after April 9, 2019 will a new schedule under this section. be accepted by the Office. POSTAL REGULATORY COMMISSION (f) Legal sufficiency of schedules. The (d) Content. A notice submitted under Copyright Office does not review paragraph (c) of this section shall 39 CFR Part 3010 schedules submitted under paragraph contain the following, in addition to any [Docket No. RM2016–6; Order No. 4850] (c) of this section for legal sufficiency, other information required on the interpret their content, or screen them Office’s form or website: Mail Preparation Changes for errors or discrepancies. The Office’s (1) The full legal name, email address, review is limited to whether the and physical street address of the AGENCY: Postal Regulatory Commission. procedural requirements established by transmitting entity to which rights ACTION: Final rule. the Office (including payment of the owners should send notifications of SUMMARY: The Commission adopts a proper filing fee) have been met. Rights claimed violations of 17 U.S.C. 1401(a). final rule concerning mail preparation owners are therefore cautioned to A post office box may not be substituted changes. The rule as adopted removes review and scrutinize schedules to for the street address of a transmitting reference to procedures relying on the assure their legal sufficiency before entity. Related or affiliated transmitting existence of a substantive standard for submitting them to the Office. entities that are separate legal entities mail preparation changes in response to (g) Filing date. The date of filing of a (e.g., corporate parents and subsidiaries) the recent decision in United States schedule of pre-1972 sound recordings are considered separate transmitting Postal Serv. v. Postal Reg. Comm’n, 886 is the date when a proper submission, entities, and each must file its own amozie on DSK3GDR082PROD with RULES F.3d 1253 (D.C. Cir. 2018). including the prescribed fee, is received separate notice of contact information. in the Copyright Office. The filing date DATES: Effective November 15, 2018. (2) The website(s) and/or may not necessarily be the same date application(s) through which the FOR FURTHER INFORMATION CONTACT: that the schedule, for purposes of 17 transmitting entity publicly performs David A. Trissell, General Counsel, at U.S.C. 1401(f)(5)(A)(i)(II), is indexed pre-1972 sound recordings by means of 202–789–6820. into the Office’s public records. digital audio transmission. SUPPLEMENTARY INFORMATION: VerDate Sep<11>2014 16:24 Oct 15, 2018 Jkt 247001 PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 E:\FR\FM\16OCR1.SGM 16OCR1


Document Created: 2018-10-15 23:42:37
Document Modified: 2018-10-15 23:42:37
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionInterim rule with request for comments.
DatesThe effective date of the interim regulations is October 16, 2018. Written comments must be received no later than 11:59 p.m. Eastern Time on November 15, 2018.
ContactRegan A. Smith, General Counsel and Associate Register of Copyrights, by email at [email protected], Anna Chauvet, Assistant General Counsel, by email at [email protected], or Jason E. Sloan, Assistant General Counsel, by email at [email protected] Each can be contacted by telephone by calling (202) 707-8350.
FR Citation83 FR 52150 
CFR AssociatedCopyright and General Provisions
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