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[Federal Register Volume 77, Number 102 (Friday, May 25, 2012)]
[Proposed Rules]
[Pages 31237-31240]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12652]

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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 2012-4]

Electronic Filing in the Copyright Office of Notices of Intention 
To Obtain a Section 115 Compulsory License

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Copyright Office is proposing to amend its regulations for 
filing Notices of Intention to obtain a Section 115 compulsory license 
with the Copyright Office to provide an option for electronically 
filing the notice. By law, such notices may be filed in the Office only 
when the public records of the Copyright Office do not identify the 
copyright owner of the musical work and include an address at which 
notice can be served. In addition, the Copyright Office is proposing to 
clarify in its regulations that it does not examine Notices of 
Intention filed with the Office for legal sufficiency and to include a 
Privacy Act Advisory Statement.

DATES: Comments are due no later than 5:00 p.m. Eastern Daylight Time 
July 9, 2012.

ADDRESSES: The Copyright Office strongly prefers that comments be 
submitted electronically. A rulemaking page containing a comment form 
is posted on the Copyright Office Web site at http://copyright.gov/docs/section115/efilings/comments/. The Web site interface requires 
submitters to complete a form specifying name and organization, as 
applicable, and to upload comments as an attachment via a browse 
button. To meet accessibility standards, all comments must be

[[Page 31238]]

uploaded in a single file in either the Adobe Portable Document File 
(PDF) format that contains searchable, accessible text (not an image); 
Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII text file 
format (not a scanned document). The maximum file size is 6 megabytes 
(MB). The name of the submitter and organization should appear on both 
the form and the face of the comments. All comments will be posted 
publicly on the Copyright Office Web site exactly as they are received, 
along with names and organizations. If electronic submission of 
comments is not feasible, please contact the Copyright Office at 202-
707-8380 for special instructions.

FOR FURTHER INFORMATION CONTACT: Tanya Sandros, Deputy General Counsel, 
or Stephen Ruwe, Attorney-Advisor, Copyright GC/I&R, P.O. Box 70400, 
Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 707-
8366.

SUPPLEMENTARY INFORMATION: 

I. Background

    Section 115 of the Copyright Act, 17 U.S.C., provides that ``[w]hen 
phonorecords of a nondramatic musical work have been distributed to the 
public in the United States under the authority of the copyright owner, 
any other person * * * may, by complying with the provisions of this 
section, obtain a compulsory license to make and distribute 
phonorecords of the work.'' 17 U.S.C. 115(a)(1).
    Included among the conditions that must be met to use the Section 
115 compulsory license is the requirement that a person who wishes to 
obtain a compulsory license ``shall, before or within thirty days after 
making, and before distributing any phonorecords of the work, serve 
notice of intention to do so on the copyright owner. If the 
registration or other public records of the Copyright Office do not 
identify the copyright owner and include an address at which notice can 
be served, it shall be sufficient to file the notice of intention in 
the Copyright Office. The notice shall comply, in form, content, and 
manner of service, with requirements that the Register of Copyrights 
shall prescribe by regulation.'' 17 U.S.C. 115(b)(1).
    In 2004, the Copyright Office (``Office'') amended 37 CFR 201.18, 
the regulations governing Notices of Intention to obtain a Section 115 
compulsory license (``Notices''), in order to make the license more 
functional. 69 FR 34578 (June 22, 2004). Among the 2004 amendments to 
37 CFR 201.18 was a provision that allowed that a Notice ``may 
designate any number of nondramatic musical works, provided that the 
copyright owner of each designated work or, in the case of any work 
having more than one copyright owner, any one of the copyright owners 
is the same and that the information required under paragraphs 
(d)(1)(i) through (iv) of this section does not vary [i.e., name and 
contact information of licensee; name and contact information of 
primary entity making and distributing phonorecords, and information 
concerning yearly accounting periods]. For purposes of this section, a 
Notice which lists multiple works shall be considered a composite 
filing of multiple Notices and fees shall be paid accordingly if filed 
in the Copyright Office under paragraph (f) of this section (i.e., a 
separate fee, in the amount set forth in Sec.  201.3(e)(1), shall be 
paid for each work listed in the Notice).'' 37 CFR 201.18(a)(4). The 
2004 amendments also allowed licensees to serve Notices directly on 
copyright owners or designated agents by means of an electronic 
transmission when the copyright owner or designated agent has a written 
public policy that it can accommodate such submissions. 37 CFR 
201.18(a)(7).
    Earlier in the 2004 rulemaking process the Office also considered 
whether to allow a licensee to file a Notice in the Office in an 
electronic format. The Office determined that it was not prepared to 
accept electronically filed Notices because it did not have in place 
the systems that would accommodate such filings but that the Office 
anticipated that such filings would be accepted in the future. The 
Office did provide that in the case where the licensee intends to 
license a high volume of nondramatic musical works under section 115 
and would endure significant hardships if required to submit the 
Notices under the standard practices, the licensee may contact the 
Licensing Division of the Copyright Office to inquire whether special 
arrangements could be made for submission of the Notice electronically. 
69 FR 11566, 11570 (March 11, 2004).
    The Office is aware of a growing need for an electronic filing 
system for filing Section 115 Notices with the Copyright Office because 
of the large number of works being used under the compulsory license 
where service of the Notice cannot be made effectively on the copyright 
owner. To meet this need, the Office is now preparing to accept 
specific types of electronically filed Notices addressing multiple 
nondramatic musical works. Hence, the Office is proposing to amend its 
regulations in Sec.  201.18 by providing for use of an online system 
for submission of Notices covering multiple nondramatic musical works.

II. Proposed Procedures and Regulatory Amendments

    The Office proposes to amend its regulations to allow prospective 
licensees to make electronic filings of Notices addressing multiple 
nondramatic musical works, provided that the information required under 
paragraphs (d)(1)(i) through (iv) of Sec.  201.18 does not vary. In 
addition, the Office is proposing to clarify its rules for submission 
of Notices in a paper format that contain multiple titles of 
nondramatic musical works.
    The Office has reviewed the Notices recently filed with the 
Licensing Division in the traditional paper format and observed that 
parties have filed such Notices that address multiple works for which 
the public records of the Office do not identify the copyright owner. 
Although paragraph (d)(1)(v)(C) of Sec.  201.18 requires that a Notice 
include the copyright owner of the work only ``if known,'' the Office 
has not questioned Notices filed in a paper format addressing multiple 
works where such ``unknown'' ownership is shared across each work 
addressed in the Notice, i.e., no copyright owner can be identified for 
any of the works listed. Such paper filings do not present a problem 
for the Office to process. The Office is now entering key pieces of 
information, e.g., name of the song, licensee, and date received, from 
the Notice into a spreadsheet (currently located on the Copyright 
Office Web page at http://www.copyright.gov/licensing/115.pdf), making 
it possible to identify easily who filed a Notice for a particular 
work. However, because the current rules do not expressly address the 
Office's acceptance of Notices with multiple titles in the case where 
no copyright owner of any of the works can be identified, the Office 
proposes to amend its regulations to clarify that a Notice filed in a 
paper format may list multiple works in a single Notice when any of the 
following circumstances apply: in the case where no copyright owner can 
be identified from the Copyright Office records for any of the works 
listed in the Notice; in the case where the copyright owner of each 
work listed in the Notice is the same and the records of the Copyright 
Office do not include an address at which notice can be served; or for 
works having more than one copyright owner, in the case where the works 
listed in the Notice share a common copyright owner and the records of 
the Copyright Office do not include an address at which notice

[[Page 31239]]

can be served on any of the copyright owners for the subject works. The 
Office is maintaining these distinctions for the paper filings at this 
time because it provides more concise information to the public 
reviewing the Notices and facilitates the recordkeeping process for the 
Office.
    The Office has also determined that Notices addressing multiple 
nondramatic musical works may be submitted electronically as XML files. 
Electronically submitted Notices will be maintained in a database that 
can be searched using any of the included fields of information. While 
the search capability of the electronically filed Notices will not be 
directly available to the public for technical reasons during the 
initial rollout of this service, a request may be made to the Licensing 
Division for a search of the database during the interim period. As 
such, the Office proposes to allow Notices to be filed in the Office in 
electronic format regardless of whether the copyright owner of each 
designated work is the same, provided that the Notice does not include 
a nondramatic musical work when the identity and address of at least 
one of its copyright owners may be found in the public record of the 
Copyright Office.
    As part of the process of accepting electronically filed Notices, 
the Office is also proposing to adopt regulations governing payment for 
electronically filed Notices in order to provide a means to 
authenticate the licensee submitting the Notice (see below) and to 
facilitate an efficient implementation of the interim system. 
Specifically, the Office is proposing that during the introduction of 
the online filing process, parties that wish to use the Office's online 
system for electronically filing Notices be required to maintain a 
deposit account pursuant to Sec.  201.6(b) of the Copyright Office 
regulations for payment of the Notice filing fees set forth in Sec.  
201.3(e)(1) of the Office's regulations, an option that can be easily 
implemented. See Circular 5: How to Open and Maintain a Copyright 
Office Deposit Account at: http://www.copyright.gov/circs/circ05.pdf. 
Use of a deposit account will allow the Office to make any necessary 
fee payments immediately and it avoids the need to solve the 
technological and security issues associated with providing a credit 
card payment in this first iteration of the system.
    In addition, the Office proposes not to require an electronic 
signature during the initial rollout of the filing process, although 
the Office anticipates adding an electronic signature requirement in 
later versions of the system. Instead, a remitter will have to create 
an online account to file the Notice electronically and, as noted 
above, provide payment via a Copyright Office deposit account. The 
Office is adopting this approach because the online system will be able 
to use the deposit account information to reasonably verify and 
authenticate the identity of the person submitting and validating 
Notices. In addition, the Office will require that the person 
submitting the Notices provide contact information and attest to his or 
her authority to file Notices on behalf of the subject Licensee.
    In order to accommodate a filer of a Notice identifying only one or 
a few titles who does not have a deposit account, the Office intends in 
the future to upgrade the online filing system to require an electronic 
signature and to accept additional payment options, e.g., credit card 
payments. At the moment, however, the focus is on offering a mechanism 
for filing Notices with large numbers of titles in a manner that can 
easily be administered by the Office at this time. The Office is also 
reviewing its fee for filing Notices as part of a larger project to 
review its fees for registration and services. Any changes to the fees 
for filing Notices of Intention to Obtain a Compulsory License will be 
addressed in that process. See 77 FR 18742 (March 28, 2012).

III. Additional Amendments

    The Office is also taking this opportunity to clarify the extent to 
which the Office examines the Notices. First, the Office does not 
examine Notices for legal sufficiency. Rather, the determination of 
whether a Notice filed in the Office is sufficient as a matter of law 
under this section shall, if necessary, be made by a court of competent 
jurisdiction. For that reason, a person or entity filing a Notice of 
Intention to obtain a Section 115 compulsory license should take care 
to comply with all the statutory and regulatory requirements pertaining 
to such Notices. However, the Office will notify a prospective licensee 
when a Notice was not accompanied by payment of the required fee. Such 
a Notice is considered an incomplete submission and the Notice shall be 
deemed filed only as of the date the Office has received both the 
Notice and the applicable fee.
    In addition, the Office is proposing to amend its regulations for 
Notices to include a Privacy Act Advisory Statement in Sec.  201.18 in 
addition to providing this information on its Web site. The Privacy Act 
Advisory Statement fulfills the Office's obligation to notify the 
public that Notices with personally identifying information filed with 
the Office become public records.

IV. Pilot Program

    While the Office is proposing to amend its regulations to accept 
electronic filing of the Section 115 Notices of Intent to Obtain a 
Compulsory License, it needs to fully test the system before making it 
available to the public for actual, valid submissions of Notices. Thus, 
members of the public are invited to participate in a Beta test of the 
proposed electronic system. Parties wishing to participate in Beta 
testing should contact Tracie Coleman in the Licensing Division of the 
Copyright Office at 202-707-3600, tmau@loc.gov. The Beta testing will 
require participants to upload ``test'' Notices to the Beta version of 
the electronic system to ensure proper functionality. ``Test'' Notices 
uploaded during the Beta testing phase will not require the submission 
of a filing fee, and they will not have any legal effect or otherwise 
be considered valid for licensing purposes. The Beta testing will be 
limited to selected participants until system testing is complete.

V. Conclusion

    The Copyright Office hereby seeks comment from the public on the 
proposals identified herein concerning Notices of Intention to obtain a 
Section 115 compulsory license.

List of Subjects in 37 CFR Part 201

    Copyright.

Proposed Regulation

    In consideration of the foregoing, the Copyright Office proposes to 
amend part 201 of 37 CFR as follows:

PART 201--GENERAL PROVISIONS

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

    Authority:  17 U.S.C. 702.

Sec.  201.4  [Amended]

    2. Amend Sec.  201.4(a)(1)(iii) by removing ``Original, signed 
notices'' at the beginning of the paragraph and adding ``Notices'' in 
its place.
    3. Amend Sec.  201.18 as follows:
    a. By revising paragraph (a)(4);
    b. By adding a new paragraph (e)(5);
    c. By redesignating paragraph (g) as new paragraph (h);
    d. By adding a new paragraph (g);
    e. By adding a new paragraph (i).
    The additions and revisions to Sec.  201.18 read as follows:

[[Page 31240]]

Sec.  201.18  Notice of intention to obtain a compulsory license for 
making and distributing phonorecords of nondramatic musical works.

    (a) * * *
    (4) A Notice of Intention shall be served or filed for nondramatic 
musical works embodied, or intended to be embodied, in phonorecords 
made under the compulsory license. For purposes of this section and 
subject to subparagraphs (ii) and (iii), a Notice filed with the 
Copyright Office which lists multiple works shall be considered a 
single Notice and fees shall be paid in accordance with the fee 
schedule set forth in Sec.  201.3(e)(1) if filed in the Copyright 
Office under paragraph (f)(3) of this section. Payment of the 
applicable fees for a Notice submitted electronically under this 
paragraph shall be made through a deposit account established under 
Sec.  201.6(b).
    (i) Except as provided for in paragraph (a)(7), a Notice of 
Intention served on a copyright owner or agent of a copyright owner may 
designate any number of nondramatic musical works provided that that 
the information required under paragraphs (d)(1)(i) through (iv) of 
this section does not vary and that the copyright owner of each 
designated work is the same, or in the case of any work having more 
than one copyright owner, that any one of the copyright owners is the 
same and is the copyright owner served.
    (ii) A Notice of Intention filed in the Copyright Office in paper 
form may designate any number of nondramatic musical works provided 
that that the information required under paragraphs (d)(1)(i) through 
(iv) of this section does not vary, and that the copyright owner of 
each designated work (or, in the case of works having more than one 
copyright owner, any one of the copyright owners) is the same and the 
registration records or other public records of the Copyright Office do 
not identify the copyright owner(s) of such work(s) and include an 
address for any such owner(s) at which notice can be served. For 
purposes of this subparagraph, in the case of works having more than 
one copyright owner, a single Notice must identify an actual person or 
entity as the common copyright owner; the common copyright owner may 
not be identified as ``unknown.'' However, a single Notice may include 
multiple works for which no copyright owners can be identified for any 
of the listed works.
    (iii) A Notice of Intention filed in the Copyright Office in 
electronic format may designate multiple nondramatic musical works, 
regardless of whether the copyright owner of each designated work (or, 
in the case of any work having more than one copyright owner, any one 
of the copyright owners) is the same, provided that the information 
required under paragraphs (d)(1)(i) through (iv) of this section does 
not vary, and that for any designated work, the records of the 
Copyright Office do not include an address at which notice can be 
served.
* * * * *
    (e) * * *
    (5) If the Notice is filed in the Office electronically, the person 
or entity intending to obtain the compulsory license or a duly 
authorized agent of such person or entity shall, rather than signing 
the Notice, attest that he or she has the appropriate authority of the 
licensee, including any related entities listed, if applicable, to 
submit the electronically filed Notice on behalf of the licensee.
* * * * *
    (g) Filing date and legal sufficiency of Notices. The Copyright 
Office will notify a prospective licensee when a Notice was not 
accompanied by payment of the required fee. Notices shall be deemed 
filed as of the date the Office receives both the Notice and the fee, 
if applicable. If the prospective licensee fails to remit the required 
fee, the Notice will be deemed not to have been filed with the Office. 
However, the Copyright Office does not review Notices for legal 
sufficiency or interpret the content of any Notice filed with the 
Copyright Office under this section. Furthermore, the Copyright Office 
does not screen Notices for errors or discrepancies and it does not 
generally correspond with a prospective licensee about the sufficiency 
of a Notice. If any issue (other than an issue related to fees) arises 
as to whether a Notice filed in the Copyright Office is sufficient as a 
matter of law under this section, that issue shall be determined not by 
the Copyright Office, but shall be subject to determination by a court 
of competent jurisdiction. Prospective licensees are therefore 
cautioned to review and scrutinize Notices to assure their legal 
sufficiency before filing them in the Copyright Office.
    (h) Harmless errors. Harmless errors in a Notice that do not 
materially affect the adequacy of the information required to serve the 
purposes of section 115(b)(1) of title 17 of the United States Code, 
shall not render the Notice invalid.
    (i) Privacy Act Advisory Statement. The authority for receiving the 
personally identifying information included within a Notice of 
Intention to obtain a compulsory license is found in 17 U.S.C. 115 and 
Sec.  201.18. Personally identifying information is any personal 
information that can be used to identify or trace an individual, such 
as name, address or telephone numbers. Furnishing the information set 
forth in Sec.  201.18 is voluntary. However, if the information is not 
furnished, it may affect the sufficiency of Notice of Intention to 
obtain a compulsory license and may not entitle the prospective 
licensee to the benefits available under 17 U.S.C. 115. The principal 
uses of the requested information are the establishment and maintenance 
of a public record of the Notices of Intention to obtain a compulsory 
license received in the Licensing Division of the Copyright Office. 
Other routine uses include public inspection and copying, preparation 
of public indexes, preparation of public catalogs of copyright records 
including online catalogs, and preparation of search reports upon 
request.

    Dated: May 18, 2012
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2012-12652 Filed 5-24-12; 8:45 am]
BILLING CODE 1410-33-P
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