32316 Federal Register / Vol. 76, No. 108 / Monday, June 6, 2011 / Rules and Regulations 

(2) Enforcement period. This rule is 

effective and will be enforced from 

7 a.m. on June 6, 2011 to 

7 a.m. on June 9, 2011. 

(b) Regulations. (1) In accordance 

with the general regulations in § 165.23 

of this part, entering into, transiting 

through, mooring or anchoring within 

this regulated area is prohibited unless 

authorized by the Captain of the Port 

(COTP) Boston, or the designated onscene representative. 

(2) The ‘‘on-scene representative’’ is 

any Coast Guard commissioned, 

warrant, or petty officer who has been 

designated by the COTP Boston to act 

on his behalf. The on-scene 

representative will be aboard either a 

Coast Guard or Coast Guard Auxiliary 

vessel. 

(3) Vessel operators desiring to enter 

or operate within the regulated area 

shall contact the COTP or the 

designated on-scene representative via 

VHF channel 16 or 617–223–5750 

(Sector Boston command center) to 

obtain permission to do so. 

(4) Vessel operators given permission 

to enter or operate in the regulated area 

must comply with all directions given to 

them by the COTP or the designated onscene representative. 

(5) Notice of suspension of 

enforcement: The COTP Sector Boston 

may temporarily suspend enforcement 

of the safety zone. If enforcement is 

suspended, the COTP will cause a 

notice of the suspension of enforcement 

by all appropriate means to affect the 

widest publicity among the affected 

segments of the public. Such means of 

notification may also include, but are 

not limited to, Broadcast Notice to 

Mariners and Local Notice to Mariners. 

Such notification will include the date 

and time that enforcement is suspended 

as well as the date and time that 

enforcement will resume. 

Dated: May 24, 2011. 

John N. Healey, 

Captain, U.S. Coast Guard, Captain of the 

Port Boston. 

[FR Doc. 2011–13838 Filed 6–3–11; 8:45 am] 

BILLING CODE 9110–04–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 201 

[Docket No. RM 2010–5] 

Gap in Termination Provisions 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Final rule. 

SUMMARY: The Copyright Office is 

amending its regulations governing 

notices of termination of certain grants 

of transfers and licenses of copyright 

under section 203 of the Copyright Act. 

The amendments are intended to clarify 

the recordation practices of the 

Copyright Office regarding the content 

of certain notices of termination, and 

the circumstances under which such 

notices will be accepted by the Office. 

In particular, they clarify that the 

Copyright Office will record section 203 

notices of termination of grants for 

works created after 1977 even when the 

agreement to make a grant was made 

before 1978. 

DATES: Effective Date: June 6, 2011. 

FOR FURTHER INFORMATION CONTACT: 

David O. Carson, General Counsel, P.O. 

Box 70400, Washington, DC 20024. 

Telephone: (202) 707–8380. Telefax: 

(202) 707–8366. All prior Federal 

Register notices and public comments 

in this docket and a related inquiry are 

available at http://www.copyright.gov/ 

docs/termination. 

SUPPLEMENTARY INFORMATION: 

Background 

The Copyright Act gives authors (and 

some heirs, beneficiaries and 

representatives who are specified by 

statute) the right to terminate certain 

grants of transfers or licenses within the 

time frames set forth in the statute and 

subject to the execution of certain 

conditions precedent. Termination 

rights (also referred to as ‘‘recapture 

rights’’) are equitable accommodations 

under the law. They allow authors or 

their heirs a second opportunity to share 

in the economic success of their works. 

These termination rights are codified in 

sections 203, 304(c), 304(d) and 203 of 

Title 17 of the United States Code. They 

do not apply to copyrights in works 

made for hire or grants made by will. 

Sections 304(c) and 304(d) establish 

termination rights for works that had 

subsisting copyrights on January 1, 

1978, the effective date of the 1976 

Copyright Act. Section 203, which is the 

subject of this rulemaking, establishes 

termination rights for works subject to 

grants of transfers or licenses made on 

or after the effective date of the 1976 

Copyright Act, but only to the extent 

they were executed by the author. 

The current rulemaking addresses a 

narrow fact pattern that was also the 

subject of a related notice of inquiry 

published March 29, 2010. (75 FR 

15390). Through the notice of inquiry, 

the Office sought comments as to 

whether or how the termination 

provisions apply in circumstances 

where an author agreed to make a grant 

prior to January 1, 1978, but the work 

in question was created on or after 

January 1, 1978—circumstances raised 

by some authors and songwriters and 

their representatives in discussions with 

the Copyright Office and some 

congressional offices. Such grants are 

sometimes called ‘‘Gap Grants’’ in light 

of a perception that in creating the 

section 304 termination process and the 

section 203 termination process, as 

described above, Congress may have 

created a ‘‘gap’’ by failing to address 

circumstances in which authors (or 

would-be authors) agreed to make grants 

prospectively, before January 1, 1978, 

for works they did not create until on 

or after that date. 

In response to the Notice of Inquiry 

seeking comments on the so-called 

‘‘gap,’’ the Copyright Office received 

sixteen initial comments and nine reply 

comments. These comments are 

available online on the Copyright Office 

Web site, at http://www.copyright.gov/ 

docs/termination/. Most concluded that 

the termination right provided in 

section 203 of the Copyright Act is 

applicable to Gap Grants as currently 

codified, reasoning that a grant is not 

fully executed under the law until the 

relevant work has been created. 

Multiple commenters expanded on this 

point, observing, in turn, that there can 

be no author, no copyright interest and 

no grant of copyright under Title 17 

until there is first a work of authorship. 

One comment, however, urged caution, 

questioning whether, at least in the case 

of written grants, Congress intended the 

date of execution for the purposes of 

section 203 to mean the date the grant 

was signed. This view could not apply 

to grants made orally, but it would mean 

section 203 cannot apply to any fact 

patterns in which grants are executed in 

writing and signed prior to January 1, 

1978. 

Based on the comments received and 

its own analysis, the Copyright Office 

concluded that the better interpretation 

of the law is that Gap Grants are 

terminable under section 203, as 

currently codified, because as a matter 

of copyright law, a transfer that predates 

the existence of the copyrighted work 

cannot be effective (and therefore 

cannot be ‘‘executed’’) until the work of 

authorship (and the copyright) come 

into existence. In arriving at this 

conclusion, the Copyright Office looked 

at the plain meaning of Title 17, 

including section 203, as well as the 

legislative history of the termination 

provisions. It also considered transfer of 

copyrights and renewal rights under 

common law, prior to enactment of the 

termination provisions. See Analysis of 

Gap Grants Under the Termination 

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Federal Register / Vol. 76, No. 108 / Monday, June 6, 2011 / Rules and Regulations 32317 

Provisions of Title 17 (December 7, 

2010), available at http:// 

www.copyright.gov/reports/gapgrant%20analysis.pdf (hereinafter the 

‘‘December Analysis’’). 

In the December Analysis, the 

Copyright Office also concluded that 

legislation to clarify the statute would 

be beneficial, not only to better achieve 

the policy objectives for book authors, 

songwriters and other intended 

beneficiaries of the provision, but in 

order to provide confidence and 

certainty for publishers and other 

grantees with respect to copyright title, 

transfers and licensing transactions in 

the marketplace. Id. And the Office 

acknowledged that its own recordation 

practices required clarification, so that 

stakeholders would know whether and 

how to timely record termination 

notices pertaining to gap grants. Id. 

The Office’s recordation practices are 

the focus of the current rulemaking, 

initiated in a notice of proposed 

rulemaking published in November. 75 

FR 72771 (November 26, 2010). In the 

notice of proposed rulemaking, the 

Office stated its current practices, which 

permit the recordation of a notice of 

termination under section 203 when the 

notice states that the grant was executed 

on a specified date that is on or after 

January 1, 1978. It observed that a 

person serving and submitting a notice 

of termination based on the rationale 

described above would be justified in 

including in the notice, as the date of 

execution of the grant, the date that the 

work was created, and that for purposes 

of clearly identifying the grant being 

terminated, it may be useful (in the case 

of written grants) also to state the date 

the grant was signed. Such recordation 

by the Office would be without 

prejudice as to how a court might 

ultimately rule on whether the 

document is a notice of termination 

within the scope of section 203. See 37 

CFR 201.10(f)(5). 

The notice of proposed rulemaking 

sought comment on amendments to 

Copyright Office regulations that would 

clarify that, consistent with existing 

recordation practices, the Office 

reserves the right to refuse a document 

for recordation as a section 203 notice 

of termination if the date of execution 

of the grant, as reflected in the 

document submitted as a notice of 

termination, falls before January 1, 1978. 

The notice proposed an amendment to 

the existing regulations on notices of 

termination that would clarify certain 

circumstances under which, based on 

certain procedural failures drawn from 

the clear language of the Copyright Act, 

the Office will refuse to index as notices 

of termination documents submitted 

under section 203. These circumstances 

included a recital in a notice of 

termination of a date of execution of the 

grant that falls before January 1, 1978 (as 

discussed above), an effective date of 

termination that does not fall within the 

allowed statutory period (17 U.S.C. 

203(a)(3)), improperly timed service of 

the notice of termination (17 U.S.C. 

203(a)(4)(A)), or submission of 

documents for recordation as notice of 

termination on or after the effective date 

of termination (17 U.S.C. 203(a)(4)(A)). 

Specifically, the notice of proposed 

rulemaking proposed to amend 

§ 201.10(f)(4) of the Copyright Office 

regulations, which currently provides 

that the Copyright Office reserves the 

right to refuse recordation of a notice of 

termination if, in the judgment of the 

Copyright Office, such notice of 

termination is untimely, by adding the 

following language: ‘‘Conditions under 

which a notice of termination will be 

considered untimely include: The date 

of execution stated therein does not fall 

on or after January 1, 1978, as required 

by section 203(a) of title 17, United 

States Code; the effective date of 

termination does not fall within the 

five-year period described in section 

203(a)(3) of title 17, United States Code; 

or the documents submitted indicate 

that the notice of termination was 

served less than two or more than ten 

years before the effective date of 

termination.’’ 

The effect of the proposed 

amendment would have been that if a 

notice of termination of a Gap Grant 

provided, as the date of execution of the 

grant, a date on or after January 1, 1978, 

the Office would record the notice as a 

notice of termination under section 203. 

The Office would not question that date 

even if it knew that an agreement to 

grant the transfer or license was signed 

before January 1, 1978, since there 

would be legitimate grounds to 

conclude that the grant could not 

actually have been ‘‘executed’’ until the 

work that was the subject of the grant 

had been created. 

Comments 

The Office received seven comments 

in response to the notice of proposed 

rulemaking. All of the commenters 

expressed support for the general 

proposition that the Office should 

record notices of termination of Gap 

Grants, although not all necessarily 

agreed that such notices actually meet 

the requirements for notices of 

termination under section 203. 

Most groups representing authors and 

performers who submitted comments 

generally supported the proposed rule, 

although some proposed more extensive 

regulation. The Future of Music 

Coalition characterized the proposal as 

‘‘an appropriate compromise to facilitate 

the notice of termination filing 

requirements for Gap Grants,’’ but noted 

that ‘‘this rulemaking is not a substitute 

for statutory clarification.’’ It noted that 

under an approach that bases the date 

of execution of a grant upon the date the 

work was created, there may be 

difficulties in establishing the actual 

date of creation of the work and noted 

that an approach that considers the date 

of creation to be the date of execution 

would be less friendly to authors, 

especially when individual contracts 

apply to works created piecemeal or 

involve the transfer of multiple future 

works. 

In a jointly filed comment, The 

Authors Guild and the Songwriters 

Guild of America endorsed the 

Copyright Office’s December Analysis as 

well as the proposed regulation, but 

suggested a further amendment that 

would affirmatively state that the Office 

will record notices of termination of 

Gap Grants under section 203. They 

proposed the following language: 

‘‘Notices of termination for works 

created on or after January 1, 1978, the 

grants of transfers and licenses of 

copyrights for which were entered into 

before January 1, 1978, will be accepted 

under section 203.’’ 

Attorney Casey del Casino’s comment 

characterized the proposed regulation as 

‘‘an important step in addressing and 

attempting to correct what is clearly an 

oversight on the part of Congress with 

respect to so-called ‘gap works,’ ’’ but 

noted that ‘‘the use of the date of 

creation in the proposed rule change, 

while doctrinally sound, may in reality 

be problematic’’ because the date of 

creation of a work is not always easy to 

ascertain, especially if the specific date 

of creation must be recited in the notice 

of termination. He suggested that the 

problem could be ameliorated if only 

the year of creation must be provided. 

Alternatively, he suggested that when 

the date of creation is unknown or 

unascertainable, it should be sufficient 

to provide the date of publication, a date 

which is generally easier to determine. 

Karyn Soroka of Soroka Music Ltd. 

offered a similar comment. 

Attorneys Michael Perlstein, Bill 

Gable and Kenneth Freundlich also 

expressed concern about practical 

difficulties likely to generate litigation if 

further clarification could not be 

achieved through legislation or ‘‘best 

practices,’’ noting that ‘‘neither authors 

nor their grantees (e.g. publishing 

companies) were ever on notice that 

they needed to retain documents 

evidencing date of creation (as 

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32318 Federal Register / Vol. 76, No. 108 / Monday, June 6, 2011 / Rules and Regulations 

distinguished from date of delivery, for 

example), and that even if such 

documents may once have existed 

neither party often will have preserved 

them.’’ They therefore proposed 

guidelines that they characterized as 

‘‘author-friendly, consistent with 

legislative and judicial intent that 

authors and their heirs benefit from the 

termination statutes.’’ These guidelines 

proposed a hierarchy of five criteria to 

be used to determine the date of 

execution of a grant, culminating in a 

default rule for unpublished works with 

no registered copyright and no authorprovided proof of creation. In such 

cases, there would be a rebuttable 

presumption the work was created 

(which thereby executed the grant) on 

the statutorily fixed date of January 1, 

1978. 

Those representing grantees of rights 

also supported the Office’s proposal to 

amend its regulations to make clear that 

the Office will record notices of 

termination of Gap Grants, but they 

sought additional amendments that they 

believe would make it clearer that 

recordation does not mean the notices 

are legally valid. In other words, they 

argued that the Office should take care 

to articulate that its acceptance and 

recordation of Gap Grants under section 

203 is without prejudice to a court 

ruling that Gap Grants are not 

terminable as a matter of law. 

For example, the Software and 

Information Industry Association (SIIA) 

stated that the better practice would be 

for the Copyright Office to leave any 

merits-based evaluation to the courts 

and suggested that the amended 

regulation clarify that the Office’s 

decision to record such terminations has 

been made simply to help preserve the 

filing party’s rights, reserving the 

ultimate determination of the issue for 

the courts. While acknowledging that 

the Office has concluded that there are 

legitimate grounds to conclude that Gap 

Grants may be terminated under section 

203 because they could not have been 

‘‘executed’’ before the works subject to 

the grants were actually created, SIIA 

requested that the amended regulation 

make clear that ‘‘there are also legitimate 

grounds to assert that in the case of a 

grant signed (or, in the case of an oral 

license, agreed to) before January 1, 

1978 regarding rights in a work not 

created until January 1, 1978 or later, 

such a grant was ‘executed’ on the date 

such grant was signed and that the 

termination provisions of section 203 of 

Title 17 do not apply to any such 

grants’’; that ‘‘the Copyright Office was 

not and is not making any merit-based 

evaluation of the arguments either way’’; 

and that the regulation ‘‘simply would 

act to help preserve the filing party’s 

rights, reserving the ultimate 

determination of the issue for the 

courts.’’ SIIA Comment at 2. 

The Recording Industry Association 

of America (RIAA) raised the same point 

as SIAA, as well as a finer point the 

Office had not previously considered. It 

observed that the proposed amendment 

would recite the Copyright Office’s right 

to refuse to record a notice of 

termination if, in the judgment of the 

Office, the notice is untimely, but also 

would treat the recital by an author of 

the date of execution (in the notice of 

termination itself) as an issue relating to 

timeliness of the notice. As a result, the 

Office’s act of recording a notice of 

termination of a Gap Grant could be 

construed as a judgment by the Office 

that the particular notice is timely. 

Having defined the issue of date of 

execution of the grant as an issue 

relating to timeliness of the notice, the 

effect of the regulation might be to give 

the Office’s judgment as to timeliness in 

such cases greater weight than the 

Office intended. 

Discussion 

The Copyright Office recognizes the 

practical concerns raised by some 

commenters with respect to establishing 

an effective date of execution based on 

the date of creation of a work. How does 

one recall and prove the date of 

creation, especially in the absence of 

supporting documentation? The task is 

obviously challenging, but it is not 

unique to Gap Grants and it is not new. 

For example, authors who wish to 

terminate oral agreements (grants of 

nonexclusive rights do not require a 

signed writing) must reconstruct dates 

from memory or supporting conduct or 

documentation. To be clear, the 

Copyright Office is not suggesting that 

requiring authors to reconstruct precise 

dates decades after the fact is an optimal 

policy solution; it is merely pointing out 

that the challenges exist irrespective of 

Gap Grant scenarios. Indeed, as noted in 

the December Analysis, the challenges 

will be ongoing for purposes of section 

203. That is, in every instance where a 

grant of rights has been or will be made 

prospectively, whether in writing or 

orally, the author will need to determine 

the date of execution of the grant 

separately from the date the grant was 

initiated, in order to secure an effective 

date of termination. This would seem to 

be a particular problem for grants that 

did not or will not cover the publication 

right, although this too is not entirely 

clear. When the grant covers the 

publication right, section 203 allows for 

termination during a 5-year window 

commencing 35 years from publication 

or 40 years from the date of execution 

of the grant, whichever is sooner. Thus 

the question: can an author perform the 

statutory calculation if she cannot 

ascertain both a date of execution of the 

grant and (if the work was published) a 

publication date? 

The proposals of some commenters 

were aimed at simplifying the practical 

challenges noted above and providing 

guidance to authors and grantees alike 

for the sake of the marketplace. 

Consider, for example, the suggested 

hierarchy of five criteria to be used to 

determine the date of execution of a 

grant that was proposed by Mr. 

Perlstein, Mr. Gable and Mr. Freundlich 

(including the suggestion that the date 

of publication may be used as a proxy) 

and the year of creation solution 

proposed by Mr. del Casino. While these 

may be useful ideas, they beg some 

important questions: Does the Copyright 

Office have the authority to promulgate 

these kinds of solutions under its 

rulemaking authority? And if it does, are 

such regulations within the scope of the 

regulatory action that was proposed in 

the current rulemaking? 

Starting with the latter point, the 

current rulemaking sought comment on 

a proposal to make limited procedural 

revisions to existing Copyright Office 

regulations. These revisions would 

make clear that as long as the notice of 

termination identified the date of 

execution of the grant as a date on or 

after January 1, 1978, the Office would 

not refuse to record it for lack of 

timeliness. In explaining the reasons for 

the proposed regulatory amendment, the 

notice observed, consistent with many 

comments submitted in response to the 

March 2010 notice of inquiry, that 

‘‘there are legitimate grounds to assert 

that, in the case of a grant signed (or, in 

the case of an oral license, agreed to) 

before January 1, 1978 regarding rights 

in a work not created until January 1, 

1978 or later, such a grant cannot be 

‘executed’ until the work exists.’’ 75 FR 

72772, (November 26, 2010). Therefore, 

‘‘[a] person serving and submitting a 

notice of termination based on the 

rationale described above would be 

justified in including in the notice, as 

the date of execution of the grant, the 

date that the work was created.’’ Id. This 

is the rationale the Copyright Office 

later found to be persuasive and 

documented in its December Analysis. 

The Copyright Office notes that some 

of the alternative solutions proposed in 

some of the comments submitted by 

representatives of authors appear to go 

beyond the scope of the limited 

procedural rule governing recordation 

practice that was proposed in this 

rulemaking proceeding. Moreover, none 

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Federal Register / Vol. 76, No. 108 / Monday, June 6, 2011 / Rules and Regulations 32319 

of the commenters who urged caution in 

response to the Office’s proposal have 

had an opportunity to respond to the 

new proposals made in those comments. 

The Office concludes that to adopt a 

rule that goes beyond that which was 

proposed in the notice of proposed 

rulemaking would be beyond the scope 

of the current rulemaking and would 

require notice and opportunity for 

further comment by all interested 

parties. The Office does not wish to 

postpone the issuance of a final 

regulation in the current rulemaking, 

but is considering publishing a new 

notice of inquiry that will address the 

additional proposals. 

The Office also has questions 

regarding the scope of its regulatory 

authority to publish new proposals, 

practical solutions or alternatives to 

documenting the date of execution of 

the grant, even in instances when said 

date is elusive by reasonable standards 

and where many stakeholders would 

welcome guidance. As a general matter, 

the Copyright Office is authorized to 

issue regulations based upon existing 

law and the statutory grant of authority 

to establish regulations for the 

administration of the statutory functions 

and duties made the responsibility of 

the Office, such as the administration of 

a recordation program. See 17 U.S.C. 

702. Moreover, the existing regulations, 

as well as the final regulation adopted 

today, follow Copyright Office practice 

with respect to the content of notices of 

termination. Since the Office first issued 

regulations governing notices of 

termination in 1977, the regulations 

have provided that a notice of 

termination must recite the relevant 

date used to calculate the period during 

which termination may be effected. See 

Final Regulation, Termination of 

Transfers and Licenses Covering 

Extended Renewal Term, 42 FR 45916, 

45917 (September 13, 1977) (imposing 

requirement, for notices of termination 

under section 304(c), that notices recite 

the date copyright was secured because 

‘‘the period during which termination 

may be effected is measured from the 

date copyright was originally secured’’). 

When the Office first proposed 

regulations governing notices of 

termination under section 203, it 

proposed that such notices include 

‘‘identification of the date of execution 

of the grant being terminated’’ for the 

same reason. Notice of Proposed 

Rulemaking, Notice of Termination, 

67 FR 77951, 77953 (December 20, 

2002). No one submitted comments in 

opposition to the proposed regulation, 

and the requirement was subsequently 

adopted in interim and final regulations. 

See Interim Rule, Notice of Termination, 

67 FR 78176 (December 23, 2002) and 

Final Regulation, Notice of Termination, 

68 FR 16958 (April 8, 2003). This 

history notwithstanding, the Copyright 

Office does recognize that terminations 

effected under section 203 are only now 

ripe, meaning that they are possible for 

the first time as of January 1, 2013. This 

is not to say notices could not be filed 

sooner. Indeed, for grants entered into 

thirty-five years ago, during 1978, they 

could first be filed as of 2003, as early 

as 10 years prior to the earliest possible 

effective date. But we do allow for the 

fact that stakeholders are now focused 

on the issue to an increasing degree, as 

the actual effective dates for section 203 

begin to loom. 

The Copyright Office also wishes to 

underscore that the existing regulations, 

and the regulation adopted today, do 

not provide that a notice of termination 

should identify the date of creation of 

the work. Rather, the regulation requires 

identification of the date of execution of 

the grant because for purposes of section 

203, the date of execution is central to 

establishing the 5-year window, 35–40 

years later, during which termination is 

permissible and may be effected. But, as 

noted above and in the Office’s more 

extensive Analysis of Gap Grants Under 

the Termination Provisions of Title 17, 

the purpose of the regulation being 

adopted today is to permit recordation 

of a notice of termination of a Gap Grant 

when the terminating party recites, as 

the date of execution of the grant, the 

date the work was created. The notice 

of termination need not expressly recite 

that the work was created on a 

particular date (although it may do so). 

However, for purposes of establishing 

timeliness, it seems prudent, if not 

essential, that the notice recite a date of 

execution of the grant. This said, and as 

stated above, the Office is not unwilling 

to consider the issue more fully in a 

separate proceeding, which could 

address questions including whether 

current regulatory authority would 

allow the Office to publish practical 

solutions or alternatives to documenting 

the date of execution, for the sake of 

providing guidance to authors and 

grantees alike and for the sake of 

establishing clarity in the marketplace. 

The Office also believes the existing 

regulations on notices of termination 

offer some relief to terminating parties 

when they cannot precisely identify the 

date the work was created. Section 

201.10 has, since it was first adopted in 

1977, included a ‘‘harmless error’’ 

provision. That provision currently 

provides that ‘‘errors made in giving the 

date or registration number referred to 

in paragraph (b)(1)(iii), (b)(2)(iii), or 

(b)(2)(iv) of this section * * * shall not 

affect the validity of the notice if the 

errors were made in good faith and 

without any intention to deceive, 

mislead, or conceal relevant 

information.’’ 37 CFR 201.10(e)(2). Thus, 

since 1977 harmless errors in 

identifying ‘‘the date copyright was 

originally secured i[n] each work to 

which the notice of termination 

applies,’’ the requirement set forth in 

paragraph (b)(1)(iii), have not affected 

the validity of the notice. More 

pertinently, harmless errors in reciting 

the date of execution, the requirement 

set forth in paragraph (b)(2)(iii) of 

section 201.10, also have not affected 

the validity of a notice of termination 

under section 203 since regulations 

governing section 203 notices of 

termination were first adopted. This 

provision should provide relief for 

terminating parties who provide a date 

of execution which, although it is as 

accurate as the terminating party is able 

to ascertain, turns out not to be the 

actual date of execution of the grant (i.e., 

in the case of a Gap Grant, the actual 

date the work was created), so long as 

the date is provided in good faith and 

without any intention to deceive, 

mislead or conceal relevant information. 

Of course, if the wrong date is recited 

in the notice and a court subsequently 

determines that the actual date of 

execution was at a time that places the 

effective date of termination or the date 

of service of the notice of termination 

outside of the statutory windows, the 

harmless error doctrine will be of no 

assistance. But that would not be the 

result of the misstatement in the notice 

of termination of the date of execution; 

rather, it would be because upon a 

review of all the relevant facts, a court 

concludes that the actual date of 

execution was too early or too late to 

provide a basis for the service of the 

notice of termination. 

With respect to the specific regulatory 

text proposed in the notice of proposed 

rulemaking, the RIAA’s comment has 

persuaded the Copyright Office that 

treating the identification of the date of 

execution as a matter of ‘‘timeliness’’ is 

the wrong approach because it conflates 

two different topics: (1) Whether a 

notice of termination was served and/or 

submitted for recordation on time, and 

(2) whether the grant that is the subject 

of the notice of termination was made 

at a time that qualifies it for termination 

under section 203. The analysis of the 

first topic assumes that the grant is 

terminable under section 203; it simply 

examines whether the notice was served 

and recorded in the permissible time 

frame. In contrast, the analysis of the 

second topic addresses the very 

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32320 Federal Register / Vol. 76, No. 108 / Monday, June 6, 2011 / Rules and Regulations 

eligibility of the grant for termination 

under section 203. 

Moreover, as originally drafted, the 

proposed amendments to § 201.10(f)(4) 

related only to section 203 notices of 

termination, even though § 201.10(f)(4) 

in fact covers both section 203 and 

section 304 notices of termination. In 

particular, the following passage 

ignored the fact that paragraph 4 is 

supposed to cover both types of 

termination: 

Conditions under which a notice of 

termination will be considered untimely 

include: The date of execution stated therein 

does not fall on or after January 1, 1978, as 

required by section 203(a) of title 17, United 

States Code; the effective date of termination 

does not fall within the five-year period 

described in section 203(a)(3) of title 17, 

United States Code. 

The Office has therefore concluded 

that the language relating to 

identification of the date of execution of 

the grant should not be included in 

§ 201.10(f)(4), but should be moved to a 

separate paragraph (f)(5) addressing 

only the issue of date of execution. The 

other proposed revisions to 

§ 201.10(f)(4), describing situations in 

which a notice of termination will be 

considered untimely, should remain but 

should be amplified by a reference to 

section 304(c)(3) (which, like section 

203(a)(3), requires that the effective date 

of termination fall within a prescribed 

time frame) following the language that 

currently addresses situations in which 

the effective date of termination does 

not fall within the five-year period 

specified by section 203(a)(3). As a 

result, the second sentence of 

§ 201.10(f)(4) shall read as follows: 

‘‘Conditions under which a notice of 

termination will be considered untimely 

include: The effective date of 

termination does not fall within the 

five-year period described in section 

203(a)(3) or section 304(c)(3), as 

applicable, of title 17, United States 

Code; or the documents submitted 

indicate that the notice of termination 

was served less than two or more than 

ten years before the effective date of 

termination.’’ As noted in the notice of 

proposed rulemaking, the circumstances 

identified in this paragraph (b)(4) are 

not intended to be an exhaustive list of 

procedural failures that may result in 

failure to record notices of termination. 

For the sake of clarity, the new 

paragraph addressing identification of 

the date of execution shall also 

specifically address the issue of Gap 

Grants: 

(5) In any case where an author agreed, 

prior to January 1, 1978, to make a grant of 

a transfer or license of rights in a work that 

was not created until on or after January 1, 

1978, a notice of termination of a grant under 

section 203 of title 17 may be recorded if it 

recites, as the date of execution, the date on 

which the work was created. 

The sole remaining issue is whether, 

as SIIA suggested, additional language is 

necessary to clarify that this regulation 

is not a ‘‘merits-based determination that 

could be incorrectly used by authors as 

authority for the applicability of section 

203 of Title 17.’’ As stated in the notice 

of proposed rulemaking, the Office’s 

recordation of notices of termination of 

Gap Grants is without prejudice to how 

a court might ultimately rule on 

whether any particular document 

qualifies as a notice of termination 

within the scope of section 203, 

consistent with longstanding practices 

for all notices of termination recorded 

by the Office. By permitting recordation 

of such a notice of termination, the 

Office permits the terminating party to 

move forward based upon a reasonable 

interpretation of the statute. Refusing to 

permit recordation of a notice of 

termination of a Gap Grant would put 

the Office in the position of imposing an 

unjustified impediment to the ability of 

an author or an author’s heirs to assert 

what may well be a viable right to 

terminate a grant. If there is any dispute 

over the validity of such a notice of 

termination (or of notices of termination 

of Gap Grants in general), that dispute 

should be settled in the courts (or in 

Congress, if Congress accepts the 

Office’s suggestion to enact legislation 

that will clarify the status of Gap 

Grants). 

The amendment proposed in the 

notice of proposed rulemaking 

included, in § 201.10(f)(4), the alreadyexisting language that ‘‘Whether a 

document so recorded is sufficient in 

any instance to effect termination as a 

matter of law shall be determined by a 

court of competent jurisdiction.’’ 

However, that language would no longer 

apply to recordation of Gap Grants now 

that the language relating to Gap Grants 

is being expanded and moved to a 

separate paragraph. In considering the 

issue further, the Office concludes that 

the proposed language is no longer 

necessary in § 201.10(f)(4) because the 

existing regulatory text in § 201.10(f)(5) 

(which will be renumbered as 

§ 201.10(f)(6) following the insertion of 

the new paragraph (f)(5)) makes it clear 

that recordation of a notice of 

termination does not mean that the 

notice meets the requirements of the 

law: 

‘‘A copy of the notice of termination shall 

be recorded in the Copyright Office before 

the effective date of termination, as a 

condition to its taking effect. However, the 

fact that the Office has recorded the notice 

does not mean that it is otherwise sufficient 

under the law. Recordation of a notice of 

termination by the Copyright Office is 

without prejudice to any party claiming that 

the legal and formal requirements for issuing 

a valid notice have not been met.’’ 

However, we have modified that 

paragraph to include a reference to ‘‘a 

court of competent jurisdiction,’’ as this 

phrase appears in the existing language 

in paragraph (f)(4) and was included in 

the notice of proposed rulemaking. 

List of Subjects in 37 CFR Part 201 

Copyright, General provisions. 

Final Regulation 

In consideration of the foregoing, the 

Copyright Office amends 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; section 201.10 

also issued under 17 U.S.C. 203 and 304. 

■ 2. Section 201.10 is amended as 

follows: 

■ a. By revising paragraph (f)(4); 

■ b. By redesignating paragraphs (f)(5) 

and (f)(6) as paragraphs (f)(6) and (f)(7); 

■ c. By adding a new paragraph (f)(5); 

■ d. In redesignated paragraph (f)(6), by 

removing ‘‘met.’’ and adding in its place 

‘‘met, including before a court of 

competent jurisdiction.’’ 

§ 201.10 Notices of termination of 

transfers and licenses. 

* * * * * 

(f) * * * 

(4) Notwithstanding anything to the 

contrary in this section, the Copyright 

Office reserves the right to refuse 

recordation of a notice of termination as 

such if, in the judgment of the Copyright 

Office, such notice of termination is 

untimely. Conditions under which a 

notice of termination will be considered 

untimely include: the effective date of 

termination does not fall within the 

five-year period described in section 

203(a)(3) or section 304(c)(3), as 

applicable, of title 17, United States 

Code; or the documents submitted 

indicate that the notice of termination 

was served less than two or more than 

ten years before the effective date of 

termination. If a notice of termination is 

untimely or if a document is submitted 

for recordation as a notice of 

termination on or after the effective date 

of termination, the Office will offer to 

record the document as a ‘‘document 

pertaining to copyright’’ pursuant to 

§ 201.4(c)(3), but the Office will not 

index the document as a notice of 

termination. 

WReier-Aviles on DSKGBLS3C1PROD with RULES

Federal Register / Vol. 76, No. 108 / Monday, June 6, 2011 / Rules and Regulations 32321 

(5) In any case where an author 

agreed, prior to January 1, 1978, to a 

grant of a transfer or license of rights in 

a work that was not created until on or 

after January 1, 1978, a notice of 

termination of a grant under section 203 

of title 17 may be recorded if it recites, 

as the date of execution, the date on 

which the work was created. 

* * * * * 

Dated: May 27, 2011. 

Maria A. Pallante, 

Acting Register of Copyrights. 

Approved by 

James H. Billington, 

The Librarian of Congress. 

[FR Doc. 2011–13845 Filed 6–3–11; 8:45 am] 

BILLING CODE 1410–30–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2011–0379; FRL–9314–4] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Pennsylvania; Revision to the 

Inspection and Maintenance (I/M) 

Program—Quality Assurance Protocol 

for the Safety Inspection Program in 

Non-I/M Counties 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to approve revisions to the 

Pennsylvania State Implementation Plan 

(SIP). The revision consists of a change 

by the Commonwealth of Pennsylvania 

to the quality assurance program for its 

motor vehicle inspection and 

maintenance program (I/M program). 

Specifically, the Commonwealth is 

amending a provision of its prior SIPapproved I/M program to change the 

duration of the timing of quality 

assurance audits performed by the 

Pennsylvania Department of 

Transportation (PENNDOT) as part of 

their program oversight. The 

amendment allows for these audits to be 

conducted within five days of vehicle 

inspection, instead of the two-day 

window allowed under the prior 

approved SIP. This SIP revision affects 

forty-two counties in Pennsylvania 

where visual emissions equipment 

inspections are performed as part of the 

Commonwealth’s annual vehicle safety 

inspection program (i.e., non-I/M 

counties). It does not affect the twentyfive counties where separate enhanced 

I/M emissions inspections are 

performed in addition to the annual 

safety inspection program (i.e., I/M 

counties). This SIP revision applies to 

PENNDOT staff overseeing stations that 

conduct safety inspections in non-I/M 

program counties. It does not impact 

motorists subject to the program or 

stations that perform emissions 

inspections. EPA is approving this 

amendment to Pennsylvania’s approved 

I/M SIP in accordance with the 

requirements of the Clean Air Act 

(CAA). 

DATES: This rule is effective on August 

5, 2011 without further notice, unless 

EPA receives adverse written comment 

by July 6, 2011. If EPA receives such 

comments, it will publish a timely 

withdrawal of the direct final rule in the 

Federal Register and inform the public 

that the rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2011–0379 by one of the 

following methods: 

A. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

B. E-mail: 

fernandez.cristina@epa.gov. 

C. Mail: EPA–R03–OAR–2011–0379, 

Cristina Fernandez, Associate Director, 

Office of Air Program Planning, 

Mailcode 3AP30, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2011– 

0379. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the 

electronic docket are listed in the 

http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in http:// 

www.regulations.gov or in hard copy 

during normal business hours at the Air 

Protection Division, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

Copies of the State submittal are 

available at the Pennsylvania 

Department of Environmental 

Protection, Bureau of Air Quality 

Control, P.O. Box 8468, 400 Market 

Street, Harrisburg, Pennsylvania 17105. 

FOR FURTHER INFORMATION CONTACT: 

Brian Rehn, (215) 814–2176, or by 

e-mail at rehn.brian@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

I. Background 

On May 22, 2009, the Commonwealth 

of Pennsylvania submitted a formal 

revision to its SIP. That SIP revision, 

which is the subject of this action, 

consists of an amendment to the 

enhanced motor vehicle emission 

inspection program SIP submitted by 

Pennsylvania on December 1, 2003 and 

approved as part of the 

Commonwealth’s SIP on October 6, 

2005 (70 FR 58313). This SIP revision 

amends Pennsylvania’s quality 

assurance program, which applies to 

PENNDOT staff that oversee the antitampering visual inspection performed 

as part of the annual safety inspection 

program in the forty-two Pennsylvania 

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