[Federal Register Volume 69, Number 228 (Monday, November 29, 2004)]
[Rules and Regulations]
[Pages 69288-69290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26266]



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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 259

[Docket No. 2004-7 CARP]


Filing of Claims for DART Royalty Funds

AGENCY: Copyright Office, Library of Congress.

ACTION: Waiver of regulation.

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SUMMARY: The Copyright Office of the Library of Congress is announcing 
alternative methods for the filing of claims to the DART royalty funds 
for the year 2004 while it completes the transition to a permanent 
system for the electronic filing of claims. In order to ensure that 
claims are timely received, claimants are encouraged to file their DART 
claims on-line or by fax, utilizing the special procedures described in 
this Notice. Claims filed on-line must be received by the Office no 
later than 5 p.m. E.S.T. on February 28, 2005.

DATES: Effective January 1, 2005.

ADDRESSES: Claims may be filed on-line through the Copyright Office 
website at http://www.copyright.gov/carp/dart/index.html. Submissions 
by facsimile should be sent to (202) 252-3423. If hand delivered by a 
private party, an original and two copies of each claim should be 
brought to Room LM-401 of the James Madison Memorial Building and the 
envelope should be addressed as follows: Office of the General Counsel/
CARP, U.S. Copyright Office, James Madison Memorial Building, Room LM-
401, 101 Independence Avenue, S.E., Washington, D.C. 20559-6000 between 
8:30 a.m. and 5 p.m. If delivered by a commercial courier, an original 
and two copies of each claim must be delivered to the Congressional 
Courier Acceptance Site located at 2nd and D Streets, N.E. between 8:30 
a.m. and 4 p.m. The envelope should be addressed as follows: Office of 
the General Counsel/CARP, Room LM-403, James Madison Memorial Building, 
101 Independence Avenue, S.E., Washington, D.C. If sent by mail 
(including overnight delivery using U.S. Postal Service Express Mail), 
an original and two copies of each claim should be addressed to: 
Copyright Arbitration Royalty Panel (CARP), P.O. Box 70977, Southwest 
Station, Washington, D.C. 20024. Claims may not be delivered by means 
of overnight delivery services such as Federal Express, United Parcel 
Service, etc., due to delays in processing receipt of such deliveries. 
See SUPPLEMENTARY INFORMATION for information about on-line electronic 
filing through the Copyright Office website.

FOR FURTHER INFORMATION CONTACT: Gina Giuffreda, Attorney-Advisor, or 
Abioye Oyewole, CARP Specialist. Telephone: (202) 707-8380. Telefax: 
(202) 252-3423.

SUPPLEMENTARY INFORMATION:

Background

    Chapter 10 of the Copyright Act, 17 U.S.C., places a statutory 
obligation on manufacturers and importers of digital audio recording 
devices and media (``DART'') who distribute the products in the United 
States to submit royalty fees to the Copyright Office. 17 U.S.C. 1003. 
Distribution of these royalty fees may be made to any interested 
copyright owner who has filed a claim and (1) whose sound recording was 
distributed in the form of digital musical recordings or analog musical 
recordings and (2) whose musical work was distributed in the form of 
digital musical recordings or analog musical recordings or disseminated 
to the public in transmissions. 17 U.S.C. 1006.
    Section 1007 provides that claims to these royalty fees must be 
filed ``[d]uring the first 2 months of each calendar year'' with the 
Librarian of Congress ``in such form and manner as the Librarian of 
Congress shall prescribe by regulation.'' 17 U.S.C. 1007. Part 259 of 
title 37 of the Code of Federal Regulations sets forth the procedures 
for the filing of claims to the DART royalty funds. Section 259.5 
states that in order for a claim to be considered timely filed with the 
Copyright Office, the claims either have to be hand delivered to the 
Office by the last day in February or if sent by mail, received by the 
Office by the last day in February or bear a January or February United 
States Postal Service postmark. 37 CFR 259.5(a). Claims received after 
the last day in February will be accepted as timely filed only upon 
proof that the claim was placed within the United States Postal Service 
during the months of January or February. 37 CFR 259.5(e). A January or 
February postmark of the United States Postal Service on the envelope 
containing the claim or, if sent by certified mail return receipt 
requested, on the certified mail receipt constitutes sufficient proof 
that the claim was timely filed. 37 CFR 259.5(e). The regulations do 
not provide for the filing of DART claims by alternative methods such 
as on-line submission or facsimile transmission.
    Prior to 2002, claims to DART royalties generally were considered 
timely filed with the Copyright Office only if they were hand delivered 
to the correct location within the Copyright Office or mailed to the 
correct address and bore a January or February U.S. Postal Service 
postmark. However, in October 2001, concerns about possible anthrax 
contamination of mail addressed to facilities in the District of 
Columbia caused severe disruptions of postal service to the Copyright 
Office. See 66 FR 62942 (December 4, 2001) and 66 FR 63267 (December 5, 
2001). Although mail delivery to the Copyright Office resumed, the 
Office continued to experience delays in the receipt of mail due in 
part to the diversion of all incoming mail to an off-site location for 
screening. As a result, the Copyright Office announced alternative 
methods for the filing of DART claim for the claim years 2001 through 
2003. See 67 FR 5213 (February 5, 2002), 67 FR 71477 (December 2, 
2002), and 68 FR 74481 (December 24, 2003). Specifically, the Office 
waived its regulations requiring that claims bear the original 
signature of the claimant or of a duly authorized representative of the 
claimant, 37 CFR 259.3(b), to allow the electronic submission of 
claims, and prohibiting the filing of claims by facsimile transmission, 
37 CFR 259.5(d), to allow the submission of claims by facsimile. See 67 
FR 5213 (February 5, 2002), 67 FR 71477 (December 2, 2002), and 68 FR 
74481 (December 24, 2003).
    The electronic submission of claims proved to be popular with 
claimants and administratively efficient for the Office. This coupled 
with the fact that the Office's mail will continue to be diverted to an 
off-site location for screening led the Office to conclude that 
establishing a permanent system for the electronic filing of claims 
would be beneficial to claimants and to the Office. Subsequently, the 
Office announced its intention to issue such regulations in time for 
the filing of DART claims in January and February 2005. See 69 FR 
630577 (May 28, 2004).
    Accordingly, the Office proposed and solicited comments on rules 
establishing a permanent system for the electronic filing of claims, 69 
FR 61325 (October 18, 2004), including the use of a Personal 
Identification Number (``PIN'') as a proxy for a signature on claims 
submitted on-line through the Office's website. See 69 FR 61325, 61326-
27 (October 18, 2004). The comments received by the Office raised 
several issues concerning the proposed PIN system which the Office will 
not be able to resolve in time to issue final regulations prior to the 
submission of 2004 DART claims starting in January 2005.

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    Consequently, the Office is waiving, for the final time, 
Sec. Sec. 259.3(b) and 259.5(d) and allowing the on-line and facsimile 
submission of DART claims to the 2004 DART royalty funds. On-line forms 
will be available starting on January 1, 2005, and may be submitted via 
the Office's website.
    This Notice covers only the means by which claims may be accepted 
as timely filed; all other filing requirements, such as the content of 
claims, remain unchanged, except as noted herein. See 37 CFR part 259.

Acceptable Methods of Filing DART Claims for the Year 2004

    Claims to the 2004 DART royalty funds may be submitted as follows:
    a. On-line Submission
    In order to best ensure the timely receipt by the Copyright Office 
of DART claims, the Office strongly encourages claimants to file their 
claims on-line by February 25, 2005, via the Copyright Office website. 
The Office has devised on-line electronic forms for filing both single 
and joint DART claims. Claimants will be able to access and complete 
the forms via the Copyright Office website and may submit the forms on-
line as provided in the instructions accompanying the forms. DART forms 
will be posted on the Office website at http://www.copyright.gov/carp/dart/index.html. Claimants filing a joint claim may list each of their 
joint claimants directly on the Office's on-line joint claim form or 
may submit the list of joint claimants as a file attachment to the 
submission page. Lists of joint claimants sent as an attachment must be 
in a single file in either Adobe Portable Document (``PDF'') format, in 
Microsoft Word Version 2000 or earlier, in WordPerfect 9 or earlier, or 
in ASCII text. There will be a browse button on the form that will 
allow claimants to attach the file containing the list of joint 
claimants and then to submit the completed form to the Office. The 
attachment must contain only the list of names of joint claimants. 
Joint claims with attachments containing information other than the 
joint claimants' names will be rejected.
    The DART forms will be available for use during the months of 
January and February 2005. It is critically important to follow the 
instructions in completing the forms before submitting them to the 
Office. Claims submitted on-line using forms or formats other than 
those specified in this Notice will not be accepted by the Office. 
During the past three years, claims submitted on-line had to be 
received by the Office no later than 11:59 p.m. E.S.T. on the last day 
of February. However, some claimants who filed their 2003 cable and 
satellite claims on-line experienced technical difficulties near the 
end of the filing period. Because the Office was made aware of these 
difficulties during its normal business hours, the technical problems 
were rectified quickly. Therefore, to better ensure the swift 
resolution of technical difficulties in the unlikely event they occur, 
claims filed on-line must be received by the Office no later than 5 
p.m. E.S.T. on February 28, 2005. Specifically, the completed 
electronic forms must be received in the Office's server by that time. 
Any claim received after that time will be considered untimely filed. 
As such, claimants submitting their claims on-line are strongly 
encouraged to submit their claim no later than February 25, 2005, in 
order to avoid any unforseen delays in receipt of claims by the Office.
    Claimants filing their claims on-line can ascertain the timeliness 
of their claim by the receipt of two confirmations. First, immediately 
after submitting the claim, a confirmation page will appear showing a 
copy of the claim submitted, noting the attachment of a file, when 
applicable, and displaying the time and date the claim was submitted. 
Second, the claimant will receive shortly thereafter an electronic mail 
message stating that the Office has received their submission. 
Therefore, claimants utilizing this filing option are required to 
provide an e-mail address. The electronic mail message will show a copy 
of the claim filed, will contain a copy of the attachment listing the 
names of joint claimants to a joint claim, when applicable, and will 
note the time and date of submission. Either confirmation will 
constitute sufficient proof of a timely filed on-line claim should a 
question arise regarding timeliness. Therefore, claimants should not 
consider their claims successfully submitted to the Office until they 
receive at least one of the two aforementioned forms of official 
confirmation. If for some reason neither confirmation is received and 
the claimant is unable to complete the electronic filing process, the 
claimant should immediately notify the Office of the problem and be 
prepared to submit a claim by other means such as by hand delivery or 
by mail in accordance with Sec. 259.5.
    When filing claims on-line, all provisions set forth in 37 CFR part 
259 apply except Sec. 259.3(b), which requires the original signature 
of the claimant or of the claimant's duly authorized representative on 
the claim. The Office is waiving this provision for this filing period 
because at this time the Office is not equipped to receive and process 
electronic signatures.
    b. Facsimile
    Claims may be filed with the Office via facsimile transmission and 
such filings must be sent to (202) 252-3423. Claims filed in this 
manner must be received in the Office no later than 5 p.m. E.S.T. on 
February 28, 2005. The fax machine will be disconnected at that time. 
Claims sent to any other fax number will not be accepted by the Office.
    When filing claims via facsimile transmission, claimants must 
follow all provisions set forth in 37 CFR part 259 with the exception 
of Sec. 259.5(d), which prohibits the filing of claims by facsimile 
transmission. The Office is waiving this provision at this time in 
order to assist claimants in the timely filing of their claims.
    c. Hand Delivery by Private Party
    The Office encourages claimants who do not file their claims 
electronically or by facsimile to deliver their claims personally by 5 
p.m. E.S.T. on any business day, during the months of January and 
February 2005 and no later than February 28, 2005. Claimants are 
reminded that on June 30, 2004, the Office amended its regulations to 
reflect the new procedures for delivering items to the Copyright 
Office, including the filing of claims. 69 FR 39331 (June 30, 2004). 
Therefore, claimants personally delivering their claims should deliver 
their claims to the Copyright Office's Public Information Office 
located at LM-401 of the James Madison Memorial Building. To ensure 
that the claims are directed to the Office of the General Counsel, an 
original and two copies of each claim should be placed in an envelope 
addressed in the following manner: Office of the General Counsel/CARP, 
U.S. Copyright Office, James Madison Memorial Building, LM-401, First 
and Independence Avenue, S.E., Washington, D.C. 20559-6000. The Public 
Information Office is open Monday-Friday, 8:30 a.m. to 5 p.m., except 
federal holidays. 37 CFR 259.5(a)(1).
    If a claimant does not address the envelope in accordance with the 
instructions herein and the envelope is misdirected and consequently 
does not reach the Public Information Office by 5 p.m. on Monday, 
February 28, 2005, such claims will be considered as untimely filed and 
will be rejected. Claimants should also note that the Public 
Information Office closes promptly at 5 p.m. The Copyright Office will 
not accept any claim that a claimant attempts to deliver after the 
Public Information Office has closed.
    In addition, claimants hand delivering their claims should note 
that they must

[[Page 69290]]

follow all provisions set forth in 37 CFR part 259.
    d. Hand Delivery by Commercial Courier
    Section 259.5(a)(2) directs that claims delivered by a commercial 
courier must be delivered directly to the Congressional Courier 
Acceptance Site (``CCAS'') located at 2nd and D Streets, N.E. The CCAS 
will accept items from couriers with proper identification, e.g., a 
valid driver's license, Monday through Friday, between 8:30 a.m. and 4 
p.m. The envelope containing an original and two copies of each claim 
should be addressed as follows: Office of the General Counsel/CARP, 
Room LM-403, James Madison Memorial Building, 101 Independence Avenue, 
S.E., Washington, D.C. The date of receipt as documented by CCAS will 
be considered the date of receipt by the Copyright Office for purposes 
of timely filing. Any claim received by CCAS which does not have a date 
stamp of February 28, 2005, or earlier, will be considered untimely for 
this filing period and will be rejected by the Copyright Office.
    Claimants delivering their claims by commercial courier should note 
that they must follow all provisions set forth in 37 CFR part 259.
    e. By Mail
    Section 259.5(a)(3) directs claimants filing their claims by mail 
to send the claims to the Copyright Arbitration Royalty Panel, P.O. Box 
70977, Southwest Station, Washington, DC 20024. Claimants electing to 
send their claims by mail are encouraged to send their claims by 
certified mail return receipt requested, to have the certified mail 
receipt (PS Form 3800) stamped by the United States Postal Service, and 
to retain the certified mail receipt in order to provide proof of 
timely filing, should the claim reach the Office after February 28, 
2005. In the event there is a question as to whether the claim was 
deposited with the United States Postal Service during the months of 
January or February, the claimant must produce the certified mail 
receipt (PS Form 3800) which bears a United States Postal Service 
postmark, indicating an appropriate date. 37 CFR 259.5(e). Claims 
received after February 28, 2005, dated with only a business meter mark 
will be rejected as untimely unless the claimant is able to produce the 
certified mail receipt. See Universal Studios LLLP v. Peters, 308 
F.Supp.2d 1 (D.D.C. 2004); Metro-Goldwyn-Mayer Studios, Inc. v. Peters, 
309 F.Supp.2d 48 (D.D.C. 2004).
    Claimants should also note that Sec. 259.5(a)(4) prohibits the 
filing of claims by overnight delivery services such as Federal 
Express, United Parcel Service, etc. Claimants opting to file their 
claims by means of overnight delivery must use the Express Mail service 
provided by the U.S. Postal Service and address the envelope as 
instructed in this section. Using this service will better ensure the 
procurement of a January or February postmark and the receipt of the 
claim by the Office in a timely manner.
    However, as noted above, disruption of the mail service and 
delivery of incoming mail to an off-site screening center have reduced 
the timeliness of receipt of mail by the Copyright Office. Therefore, 
the Office suggests that claimants use the mail only if none of the 
other methods outlined above are feasible.
    When filing claims by this method, claimants must follow all 
provisions set forth in 37 CFR part 259.

Waiver of Regulation

    The regulations governing the filing of DART claims require ``the 
original signature of the claimant or of a duly authorized 
representative of the claimant,'' 37 CFR 259.3(b), and do not allow 
claims to be filed by ``facsimile transmission,'' 37 CFR 259.5(d). This 
Notice, however, waives these provisions as set forth herein solely for 
the purpose of filing claims to the 2004 DART royalties. The Office is 
not waiving the statutory deadline for the filing of DART claims, a 
deadline the Office has no power to waive. See, United States v. Locke, 
471 U.S. 84, 101 (1985). Thus, claimants are still required to file 
their claims by February 28, 2005.
    Waiver of an agency's rules is ``appropriate only if special 
circumstances warrant a deviation from the general rule and such 
deviation will serve the public interest.'' Northeast Cellular 
Telephone Company v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990); see 
also, Wait Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), cert. denied, 
409 U.S. 1027 (1972). Under ordinary circumstances, the Office is 
reluctant to waive its regulations. However, due to the continuing 
delays in the delivery of mail and the transition to an electronic 
filing system, the Office believes under these special circumstances 
the public interest will best be served by waiving, for this filing 
period, for the final time the requirement that DART claims bear the 
original signature of the claimant or of a duly authorized 
representative of the claimant, when, and only when, such claim is 
filed on-line through the Office's website. See 67 FR at 5214.
    Since the Office cannot waive the statutory deadline set forth in 
17 U.S.C. 1007 and accept claims filed after February 25, 2005, see 
Locke, supra, the Office believes the public interest will be served by 
providing claimants with alternative methods of filing, in addition to 
those set forth in the regulations, in order to assist them in timely 
filing their claims. By allowing claims to be filed on-line and by 
facsimile transmission, the Office is affording to all claimants an 
equal opportunity to meet the statutory deadline.

    Dated: November 22, 2004.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 04-26266 Filed 11-26-04; 8:45 am]
BILLING CODE 1410-33-S