11634 Federal Register / Vol. 86, No. 37 / Friday, February 26, 2021 / Rules and Regulations 

1Modernizing Recordation of Notices of 

Termination, 85 FR 34150 (June 3, 2020) (notice of 

proposed rulemaking; notification of inquiry). 

the Tip Rule to go into effect while the 

Department undertakes a further review 

of the Tip Rule could lead to confusion 

and uncertainty among workers and 

employers in the event that the 

Department proposes revisions to the 

rule following its review. 

In addition to opposing a delay in the 

effective date, the NFIB questioned 

whether this rulemaking could properly 

become effective before the Tip Rule’s 

original effective date. NFIB believes 

that a delay of the Tip Rule’s effective 

date must be published 30 days before 

it takes effect. The Department 

disagrees. Section 553(d) of the 

Administrative Procedure Act provides 

that substantive rules should take effect 

not less than 30 days after the date they 

are published in the Federal Register 

unless ‘‘otherwise provided by the 

agency for good cause found.’’ 5 U.S.C. 

553(d)(3). The Department finds that it 

has good cause to make this rule 

effective immediately upon publication 

because allowing for a 30-day delay 

between publication and the effective 

date of this rulemaking would result in 

the Tip Rule taking effect before the 

delay begins, which would undermine 

the purpose for which this rule is being 

promulgated and result in additional 

confusion for regulated entities. The 

Regulatory Freeze Memorandum was 

issued on January 20, 2021, only 40 

days before the Tip Rule’s original 

effective date of March 1, 2021. It would 

not have been practicable to issue an 

NPRM proposing to delay the Tip Rule 

and allow for ample time for public 

comment on that proposal in time to 

publish a final rule not less than 30 days 

before March 1. Moreover, this 

rulemaking institutes a 60-day delay of 

the Tip Rule, rather than itself imposing 

any new compliance obligations on 

employers; therefore, the Department 

finds that a lapse between publication 

and the effective date of this rule 

delaying the Tip Rule’s effective date is 

unnecessary. Because allowing for a 30- 

day period between publication and the 

effective date of this rulemaking is both 

unnecessary and impracticable, this 

final rule delaying the Tip Rule’s 

effective date is effective immediately 

upon publication. 

After reviewing timely comments 

submitted, the Department agrees with 

the supporters of the proposed delay in 

the Tip Rule’s effective date that the Tip 

Rule raises multiple issues of law, 

policy, and fact that warrant additional 

review and consideration in accordance 

with the Regulatory Freeze Memo. 

These issues include the Tip Rule’s 

codification of WHD’s guidance 

regarding the tip credit’s application to 

tipped employees who perform tipped 

and non-tipped duties; the Tip Rule’s 

revisions to portions of its CMP 

regulations on willful violations; the Tip 

Rule’s incorporation of the CAA’s 

language regarding CMPs for section 

3(m)(2)(B) violations into the 

Department’s regulations; and the Tip 

Rule’s analysis of the economic impact 

of codifying WHD’s guidance regarding 

the tip credit’s application to tipped 

employees who perform tipped and 

non-tipped duties. As numerous 

advocacy organizations and the 

Attorneys’ General for eight states and 

the District of Columbia noted in their 

comments, a delay in the Tip Rule’s 

effective date would also give the 

Department more time to review the 

issues of law raised in the January 19 

complaint. Allowing the Tip Rule to go 

into effect while the Department 

undertakes a review of these issues 

identified by commenters could lead to 

confusion among workers and 

employers in the event that the 

Department proposes to revise the Tip 

Rule after its review; delaying the Tip 

Rule would avoid such confusion. 

Additionally, the Department agrees 

with NELP that a delay in the Tip Rule’s 

effective date would prevent employers 

from incurring potentially unnecessary 

additional costs to familiarize 

themselves with the Tip Rule if the 

Department elects to propose revising 

the Tip Rule following its review. To 

give the Department additional time to 

review issues of law, policy, and fact 

raised by the Tip Rule before the Tip 

Rule goes into effect, the Department 

therefore finalizes the proposed delay in 

effective date. 

Signed this 24th day of February, 2021. 

Milton A. Stewart, 

Acting Secretary of Labor. 

[FR Doc. 2021–04118 Filed 2–24–21; 4:15 pm] 

BILLING CODE 4510–27–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 201 

[Docket No. 2020–10] 

Modernizing Recordation of Notices of 

Termination 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Final rule; statement of policy. 

SUMMARY: The Copyright Office is 

amending certain regulations governing 

the recordation of notices of termination 

to improve efficiency in processing. 

This final rule adopts regulatory 

language set forth in the Office’s June 

2020 notice of proposed rulemaking and 

notification of inquiry with some 

modifications in response to public 

comments. The Office also addresses 

public comments submitted in response 

to the subjects of inquiry published in 

the notification of inquiry. 

DATES: Effective March 29, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Regan A. Smith, General Counsel, by 

email at regans@copyright.gov, Kevin R. 

Amer, Deputy General Counsel, by 

email at kamer@copyright.gov, or 

Nicholas R. Bartelt, Attorney-Advisor, 

by email at niba@copyright.gov. Each 

can be contacted by telephone at (202) 

707–8350. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Copyright Office is in the midst 

of a multi-year modernization of its 

services and systems. One component of 

this comprehensive modernization 

initiative is the development of an 

online electronic system to process 

documents submitted for recordation, 

including notices of termination. In 

April 2020, the Office launched a 

limited pilot of this new system to allow 

pilot participants to submit certain 

transfers of ownership and other 

documents pertaining to copyright for 

recordation. Since then, the Office has 

recorded over 900 documents through 

the system while expanding 

functionality for the growing number of 

pilot users. Before implementing 

features to permit electronic recordation 

of notices of termination, the Office 

issued a notice of proposed rulemaking 

on June 3, 2020 (the ‘‘NPRM’’) to update 

its regulations governing recordation of 

notices of termination, clarify 

examination practices concerning 

terminations relating to multiple grants, 

and to solicit public comment on two 

related subjects of inquiry.1

A. Current Rules and Practices for 

Recording Notices of Termination 

In enacting the Copyright Act of 1976, 

Congress created a process for authors to 

reclaim previously-granted rights in 

their works by terminating grants after 

a period of years has elapsed. As 

explained in the NPRM, authors may 

accomplish this by selecting an effective 

date of termination within a five-year 

window that is set by statute, preparing 

a notice of termination containing this 

date and other information necessary to 

identify which grant(s) of rights in 

which work(s) are being terminated, 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 86, No. 37 / Friday, February 26, 2021 / Rules and Regulations 11635 

2 85 FR 34150–51 (citing 17 U.S.C. 203, 304(c)). 

3 17 U.S.C. 203(a)(4), 304(c)(4). These provisions 

also apply to section 304(d)(1), another termination 

provision, which incorporates section 304(c)(4) by 

reference. Id. at 304(d)(1). 

4 Id. at 702, 705(a). 

5Termination of Transfers and Licenses Covering 

Extended Renewal Term, 42 FR 45916, 45918 (Sept. 

13, 1977) (‘‘[W]e remain convinced that the 

required contents of the notice must not become 

unduly burdensome to grantors, authors, or their 

successors, and must recognize that entirely 

legitimate reasons may exist for gaps in their 

knowledge or certainty.’’); id. at 45917 (‘‘The 

preparation of notice[s] of termination will be 

occurring at a time far removed from the original 

creation and publication of a work and, in many 

cases, will involve successors of original authors 

having little, if any, knowledge of the details of 

original creation or publication.’’); id. at 45918 

(recognizing that ‘‘it will commonly be the case that 

the terminating author, or the terminating renewal 

claimant . . . will not have a copy of the grant or 

ready access to a copy’’). 

6See, e.g., Modernizing Copyright Recordation, 

82 FR 22771, 22771 (May 18, 2017) (notice of 

proposed rulemaking) (summarizing the Office’s 

document recordation process, which ‘‘can . . . 

involve considerable correspondence with remitters 

to remedy deficient submissions before they can be 

recorded’’); U.S. Copyright Office, Compendium of 

Copyright Office Practices sec. 2310.7 (3d ed. 2021) 

(‘‘Compendium (Third)’’) (Where a notice does not 

comply with recordation requirements, a 

‘‘recordation specialist may communicate with the 

remitter, may refuse to record the notice, or may 

refuse to index the notice as a notice of 

termination.’’). 

7The Office previously observed that adopting a 

permissive recordation policy is consistent with the 

statutory purpose of allowing authors to exercise 

their termination rights. See U.S. Copyright Office, 

Analysis of Gap Grants under the Termination 

Provisions of Title 17 3 (2010) (‘‘Gap Grant 

Analysis’’) (citing H.R. Rep. No. 94–1476, at 124 

(1976); S. Rep. No. 94–473, at 108 (1975)). 

8 37 CFR 201.10(f)(4); see Ray Charles Found. v. 

Robinson, 795 F.3d 1109, 1117–18 (9th Cir. 2015) 

(noting that validity and effect of notices can only 

be determined by a court of law, not the Copyright 

Office). 

9 Gap Grant Analysis at ii n.3. 

10See Authors Alliance Comments; Joint 

Comments of The Authors Guild, American 

Photographic Artists, Songwriters Guild of America, 

Inc., Society of Composers & Lyricists, National 

Press Photographers Association, Professional 

Photographers of America, American Society of 

Media Photographers, Inc., The American Society 

for Collective Rights Licensing, The North 

American Nature Photography Association, and 

Graphic Artists Guild, Inc. (‘‘Authors Guild et al.’’); 

Linda Edell Howard Comments; Motion Picture 

Association (‘‘MPA’’) Comments; Music Artists 

Coalition (‘‘MAC’’) Comments; Nashville 

Songwriters Association International (‘‘NSAI’’) 

Comments; National Music Publishers Association 

(‘‘NMPA’’) Comments; Recording Academy 

Comments; Recording Industry Association of 

America (‘‘RIAA’’) Comments. 

11See Authors Alliance Comments at 1; Joint 

Comments of Authors Guild et al. at 1–2; Edell 

Howard Comments at 1; MAC Comments at 1; NSAI 

Comments at 2; Recording Academy Comments at 

2. 

12See, e.g., RIAA Comments at 2–3. 

13 85 FR 34155. 

14See Recordation of Notices of Termination of 

Transfers and Licenses; Clarifications, 74 FR 12554, 

12556 (Mar. 25, 2009). 

15See 85 FR 34151. 

16 Id. 

17 Joint Comments of Authors Guild et al. at 3– 

4; Edell Howard Comments at 3; NSAI Comments 

at 2; Recording Academy Comments at 2; MPA 

Comments at 5–6 (suggesting that if the proposed 

rule is adopted, ‘‘the ‘may’ in the regulation should 

operate only as a safety valve to address particular 

unusual situations where an apparently untimely 

notice may not actually be untimely’’); RIAA 

Comments at 3–4. 

18Copyright Alliance Comments at 2 (taking no 

position on recordation of notices filed late, but 

commenting that notices that are facially premature 

should be refused to help grantors by making them 

aware the notices are defective and to spare 

grantees the burden of challenging validity in 

court); MPA at 6 (‘‘[A]bsent unusual circumstances, 

the Office should maintain its practice of refusing 

to record notices that appear on their face to be 

untimely.’’); NMPA Comments at 1–3 (commenting 

that the Office does not have discretion to record 

Continued 

serving the notice on the grantee(s) or 

successor(s) in title, and recording a 

copy of the notice with the Copyright 

Office.2 Recordation of the notice with 

the Office ‘‘before the effective date of 

termination’’ is ‘‘a condition to its 

taking effect,’’ and such ‘‘notice shall 

comply, in form, content, and manner of 

service, with requirements that the 

Register of Copyrights shall prescribe by 

regulation.’’ 3 More broadly, section 702 

of the Act authorizes the Register to 

‘‘establish regulations . . . for the 

administration of the functions and 

duties made the responsibility of the 

Register under [title 17],’’ and section 

705(a) requires the Register to ‘‘ensure 

that records of . . . recordations . . . 

are maintained, and that indexes of such 

records are prepared.’’ 4

In establishing regulations under this 

authority, the Office has long held the 

view that the ‘‘required contents of the 

notice must not become unduly 

burdensome to grantors, authors, and 

their successors,’’ who may lack 

knowledge of certain information, such 

as the applicable dates.5 Therefore, to 

the extent permitted by the statute, the 

Office generally seeks to avoid outright 

rejection of termination notices 

submitted for recordation on grounds of 

technical noncompliance with Office 

regulations. Instead, the Office will 

often correspond with remitters to assist 

them in bringing deficient submissions 

into compliance with the relevant 

regulations 6—for example, by 

supplying required information omitted 

from the original submission. This 

general policy in favor of recordation is 

particularly appropriate in light of the 

asymmetrical consequences associated 

with the determination of whether or 

not to record a notice.7 As the Office’s 

regulations state, recordation is ‘‘not a 

determination by the Office of the 

notice’s validity or legal effect’’ and ‘‘is 

without prejudice to any party claiming 

that the legal or formal requirements for 

effectuating termination (including the 

requirements pertaining to service and 

recordation of the notice of termination) 

have not been met.’’ 8 By contrast, a 

refusal to record can ‘‘permanently 

invalidate a notice of termination that is 

otherwise legally sound,’’ and thereby 

deprive the copyright owner of the 

ability to reclaim rights in her work.9

II. The Final Rule 

With this background and these 

policies in mind, the Office proposed 

several amendments to its regulations 

governing notices of termination to 

facilitate recordation and compliance 

with regulatory requirements. The 

Office received ten comments in 

response.10 Commenters generally 

supported the broad goal of 

modernizing recordation of notices by 

improving efficiency and clarifying the 

Office’s processes.11 At the same time, 

comments also emphasized the 

importance of recordation to grantees, 

consistent and reliable examination 

practices, and encouraging preparation 

of notices that clearly communicate 

accurate information about the grants 

and works they identify.12 Having 

considered these comments, the Office 

issues this final rule with modifications. 

A. Timeliness 

The Office proposed two updates to 

the rule governing timeliness. First, the 

Office proposed to relax the existing 

provision stating that the Office ‘‘will 

refuse’’ to record a notice that appears 

to be untimely, substituting the phrase 

‘‘may refuse.’’ 13 Until recently, the 

provision said that the Office ‘‘reserves 

the right to refuse recordation of a 

notice of termination.’’ 14 The 2017 

notice announcing the amendment of 

the provision to ‘‘will refuse’’ did not 

discuss the basis for that change.15 As 

explained in the NPRM, the proposed 

rule would afford the Office additional 

discretion to record a notice in unusual 

cases—for example, where there is 

uncertainty about the date of a work’s 

creation that could be relevant to the 

calculation of the termination 

window.16 Most commenters supported 

giving the Office the ability to exercise 

this discretion, at least where there is 

some uncertainty whether a notice is in 

fact untimely.17 Some commenters, 

however, expressed concerns about the 

Office recording notices that are clearly 

untimely, arguing that doing so would 

disserve both grantors, who may be able 

to correct and re-file such notices, and 

grantees, who desire confidence that the 

Office will not record notices that 

definitively fail to comply with 

statutory timing provisions.18


khammond on DSKJM1Z7X2PROD with RULES
11636 Federal Register / Vol. 86, No. 37 / Friday, February 26, 2021 / Rules and Regulations 

a notice it ‘‘knows to be untimely’’); RIAA 

Comments at 3–4. 

19See 37 CFR 201.4(a) (‘‘The Office may reject 

any document submitted for recordation that fails 

to comply with 17 U.S.C. 205, the requirements of 

this section, or any relevant instructions or 

guidance provided by the Office.’’); id. § 201.4(e)(1), 

(e)(3)(i). 

20See Modernizing Copyright Recordation, 82 FR 

52213, 52218 & n.68 (Nov. 13, 2017) (interim rule). 

21 37 CFR 201.10(f)(1)(ii)(B) (‘‘If a notice of 

termination is untimely, the Office will offer to 

record the document as a ‘document pertaining to 

a copyright’ pursuant to § 201.4, but the Office will 

not index the document as a notice of 

termination.’’). 

22 In a scenario where a notice is timely as to 

some—but not all—works identified, the 

recordation specialist will typically first correspond 

to provide the remitter an opportunity to amend, reserve, and re-file where possible. Where it is too 

late to amend and re-serve the notice (i.e., the 

termination window has closed or will close in less 

than two years) or the remitter otherwise declines 

to withdraw the submission, the specialist may 

record the document as a notice of termination, but 

only index the works for which the notice is timely. 

23See 37 CFR 201.10(f)(4) (‘‘Recordation of a 

notice . . . is without prejudice to any party 

claiming that the legal or formal requirements for 

effectuating termination (including the 

requirements pertaining to service and recordation 

of the notice of termination) have not been met, 

including before a court of competent 

jurisdiction.’’). 

24 82 FR 52220. 

25 37 CFR 201.10(f)(1)(ii)(A) (emphasis added). 

26 17 U.S.C. 203(a)(4)(A), 304(c)(4)(A) (emphasis 

added). 

27 85 FR at 34152. 

28RIAA Comments at 5. 

29Edell Howard Comments at 4; NSAI Comments 

at 3. 

30 85 FR 34155. 

31Edell Howard Comments at 5; NSAI Comments 

at 3; Recording Academy Comments at 2. 

32MPA Comments at 6. 

33 Id. at 6–7. 

34NMPA Comments at 4–5; RIAA Comments at 

5. 

35See MPA Comments at 6 (proposing language 

similar to that adopted by the final rule). 

Although the Office is proceeding 

with this clarifying proposed 

amendment, to address concerns raised 

by commenters, it takes this opportunity 

to explain that the amendment is not 

intended to be substantive and is being 

adopted to harmonize the provision 

with regulatory language governing the 

rejection of documents submitted for 

recordation under section 205 of the 

Copyright Act.19 Moreover, the 

amendment is not intended to alter the 

Office’s examination practices for 

notices of termination. Rather, the 

Office will continue to examine notices 

for compliance with statutory timing 

provisions. On this topic, the Office 

recently stated that while it views 

recordation generally as a ‘‘ministerial 

act,’’ it has continued its ‘‘more 

comprehensive review’’ of notices of 

termination submitted for recordation.20

Under current examination practices, if 

a notice appears to be untimely, the 

recordation specialist will correspond 

with the remitter to afford them the 

opportunity to amend, re-serve, and refile notices where possible. If, in the 

judgment of the Office, a notice is 

definitely untimely and cannot be 

amended, the specialist will offer the 

remitter the option to record it as a 

document pertaining to copyright under 

section 205 of the Copyright Act.21

Should the remitter refuse this option, 

the Office may then exercise its 

discretion to reject the notice.22 Thus, 

while the Office typically still will 

decline to record a notice that it 

determines to be untimely and this 

adjustment signals no change in practice 

in that respect, the additional discretion 

provided by this change helps to 

advance the broader policy favoring 

recordation where legally permitted.23

Second, the proposed rule clarified 

the circumstances under which 

recordation of an untimely notice is 

barred by statute. In a 2017 interim rule, 

the Office amended the regulations to 

provide examples of situations in which 

a notice will be considered untimely.24

One such example refers to cases where 

‘‘the date of recordation is after the 

effective date of termination.’’ 25

Because the relevant statutory 

provisions provide that ‘‘[a] copy of the 

notice shall be recorded in the 

Copyright Office before the effective 

date of termination, as a condition to its 

taking effect,’’ 26 the NPRM proposed to 

amend this example to clarify that a 

date of recordation ‘‘on or’’ after the 

effective date of termination will be 

considered untimely.27 RIAA agreed 

with proposed rule.28 Linda Edell 

Howard and NSAI each opposed this 

change, asserting that a notice may be 

recorded if it is submitted to the Office 

on the effective date of recordation.29

Because that interpretation is contrary 

to the statutory text, however, the final 

rule adopts the proposed amendment. 

B. Harmless Errors 

The NPRM proposed broadening the 

harmless errors exception, which 

currently applies only to ‘‘errors in a 

notice,’’ to apply equally to immaterial 

errors in complying with other 

regulatory provisions established by the 

Office. Under the proposed rule, any 

error in ‘‘preparing, serving, or seeking 

to record a notice’’ would be considered 

harmless, provided that the error does 

not materially affect the adequacy of the 

information required to serve the 

purposes of the termination statutes or 

‘‘materially affect . . . the Office’s 

ability to record the notice.’’ 30

Comments on this proposed change 

were mixed. Three commenters fully 

supported the rule as proposed.31

Another commenter, MPA, ‘‘agree[d] 

with certain principles’’ in the Office’s 

proposal, but viewed the proposed 

language as ‘‘overbroad and potentially 

ambiguous.’’ 32 MPA further argued that 

errors in the manner of service itself 

should not be treated as harmless 

because as ‘‘a technical procedure . . . 

strict compliance is typically required 

in the analogous litigation context,’’ and 

proposed more narrowly tailored 

language.33 Raising similar concerns, 

NMPA and RIAA opposed expanding 

the scope of the rule, contending that (1) 

errors in serving a notice are not and 

should not be considered harmless; and 

(2) the wording of the proposed rule 

suggests that an error that does not 

affect the Office’s ability to record the 

notice may be considered harmless even 

if the error materially affects the ability 

of the notice to serve the purposes of the 

statute.34

While the Office will proceed with 

expanding the scope of the current 

harmless errors rule, it agrees that the 

language could more precisely describe 

its intended application. Therefore, the 

Office modifies the final rule as follows. 

First, although an error in ‘‘serving’’ 

the notice would likely not be 

considered harmless because it would 

materially affect the notice’s ability to 

serve the purposes of the statute, the 

Office has revised the provision to 

clarify that harmless errors in a 

statement of service shall not render a 

notice invalid.35 The final rule also 

specifies that errors in ‘‘indexing 

information,’’ whether provided 

electronically or using a cover sheet 

such as the current Form TCS, may be 

harmless. In other words, if the cover 

sheet or electronic indexing information 

deviates in immaterial ways from the 

information provided on the notice 

itself, such errors may be harmless 

provided that the information in the 

notice itself adequately serves the 

purposes of the statute. Thus, the 

revised language clarifies that the 

harmless error provision extends only to 

immaterial errors in the notice, 

statement of service, or indexing 

information provided to the Office. 

Second, because the final rule now 

expressly includes the statement of 

service and indexing information in this 

harmless error provision, it strikes the 

proposed language that certain errors 

may be harmless so long as they ‘‘do not 

materially affect, in the Office’s 

discretion, the Office’s ability to record 

the notice.’’ This language was intended 


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Federal Register / Vol. 86, No. 37 / Friday, February 26, 2021 / Rules and Regulations 11637 

36See NMPA Comments at 4–5; RIAA Comments 

at 6. 

37To reiterate, although the regulations provide 

that harmless errors shall not render a notice 

invalid, the Office’s decision to record a notice is 

not a determination that any errors that the 

submission may contain are, in fact, harmless or 

that the notice itself is valid. See 37 CFR 

201.10(e)(1), (f)(4). 

38 85 FR 34155. 

39See Joint Comments of Authors Guild et al. at 

6; Copyright Alliance Comments at 2–3; MPA at 7– 

9; Edell Howard at 5; NMPA at 6; Recording 

Academy at 2; RIAA at 6–7. While supporting 

expanded physical delivery options, the Copyright 

Alliance observed that delivery services that require 

a signature may not be appropriate because of the 

risk that a delivery may not be accepted. Copyright 

Alliance Comments at 2–3. Although this is a valid 

concern, the Office retains the language that a 

notice be delivered by courier service because the 

grantor is in the best position to rectify any delivery 

issue. 40Some commenters proposed that the Office 

eliminate first class mail as an acceptable manner 

of service and instead allow only trackable mailing 

options such as priority or certified mail. See 

Copyright Alliance Comments at 2–3; MPA 

Comments at 8; NMPA Comments at 6; RIAA 

Comments at 6–7. While the Office acknowledges 

the benefits of using trackable services, it will retain 

first class mail as an acceptable manner of service 

because it remains an affordable, widely accessible 

option. Moreover, the Office is disinclined to 

eliminate first class mail as an option while it 

remains an acceptable method in federal courts to 

notify a defendant that an action has been 

commenced and request the defendant waive 

service of the summons. See Fed. R. Civ. P. 4(d)(1). 

The Office, however, encourages terminating parties 

to serve notices using trackable delivery options 

where feasible, agreeing with RIAA’s observation 

that using these options ‘‘would help avoid 

unnecessary disputes as to whether a grantee has 

received a termination notice and/or where the 

notice was sent.’’ RIAA Comments at 7; see also 

MPA Comments at 7 n.11 (‘‘[T]he benefits of having 

a clear record of service including, for example, the 

avoidance of litigation over whether service was 

properly effected are enormous, potentially 

representing many thousands of dollars in legal 

fees.’’). 

41 85 FR 34155. 

42 Joint Comments of Authors Guild et al. at 5; 

Edell Howard Comments at 5; MPA Comments at 

8; NMPA Comments at 6–7; NSAI Comments at 4; 

Recording Academy Comments at 2. 

43 Joint Comments of Authors Guild et al. at 5; 

Edell Howard Comments at 5 (commenting that 

‘‘requiring express consent for service by email is 

burdensome and onerous’’); NSAI Comments at 4 

(‘‘[R]equiring express consent by the grantee to 

accept service in one manner or another 

inappropriately shifts control to the grantee, who 

has no legal right to make the author’s termination 

burdensome.’’). 

44 Joint Comments of Authors Guild et al. at 5. 

45See NMPA Comments at 6 (‘‘[T]he Office 

should consider how grantees should designate the 

person(s) authorized to consent to and receive email 

service on behalf of the grantee.’’); RIAA Comments 

at 8 (‘‘Any consent to email service by a company 

must be clearly and affirmatively given by a duly 

authorized legal officer.’’). 

46See MPA Comments at 8 n.12 (noting that ‘‘an 

email address that is valid at the time of the original 

grant is unlikely to remain valid several decades 

later, when notice of termination may be served’’); 

RIAA Comments at 7 (proposing ‘‘consent be 

obtained close in time to the date of service (e.g., 

no more than 30 days prior to service), but in 

advance of (not simultaneous with) actual service’’). 

47See Joint Comments of Authors Guild et al. at 

5; Copyright Alliance Comments at 3; MPA 

Comments at 8; NMPA Comments at 6; RIAA 

Comments at 7. 

48 Joint Comments of Authors Guild et al. at 5. 

49Edell Howard Comments at 5; NMPA 

Comments at 6–7; RIAA Comments at 7. 

50RIAA Comments at 7. 

51See 37 CFR 201.18(f)(6) (outlining process by 

which list of works identified in a notice of 

Continued 

to account for a situation where an error 

in a submission would not materially 

affect the adequacy of the information 

required to serve the purposes of the 

statute, but would affect the Office’s 

ability to record the notice. For 

example, if a notice that complied with 

the statutory and regulatory 

requirements was timely served on the 

grantee, but the remitter subsequently 

failed to include the date of service in 

the statement of service submitted to the 

Office, the purposes of the statute would 

be served because the grantee would 

have adequate notice, yet the omission 

of the date of service would hamper the 

Office’s ability to examine the notice for 

timeliness. Two commenters, NMPA 

and RIAA, contended that the proposed 

language could be read to suggest that 

an error could be considered ‘‘harmless’’ 

so long as it does not affect the Office’s 

ability to record the notice even if the 

error does materially affect the 

information required to serve the 

statutory purpose.36 The Office did not 

intend this interpretation of the 

proposed provision, and agrees that it is 

unnecessary to reference the statutory 

purpose in this provision in light of the 

newly added language specifying where 

a harmless error may occur—i.e., ‘‘in a 

notice, statement of service, or indexing 

information.’’ Instead, reference to the 

statutory purpose remains part of the 

broader definition of what makes an 

error ‘‘harmless.’’ The final rule 

accordingly provides that ‘‘an error is 

‘harmless’ if it does not materially affect 

the adequacy of the information 

required to serve the purposes of 17 

U.S.C. 203, 304(c), or 304(d), whichever 

applies.’’ 37

C. Manner of Service 

To modernize how service of notices 

may be effected, the Office proposed 

two additional permissible manners of 

service: (1) By reputable courier (e.g., 

FedEx, UPS, DHL); and (2) by email 

where the grantee expressly consents.38

With respect to the first change, 

commenters unanimously supported 

allowing notices to be delivered to 

grantees by reputable couriers.39 The 

final rule accordingly adopts this 

proposal.40

With respect to email service, the 

proposed rule stated that service by 

email would be considered acceptable 

where the grantee or successor-in-title 

being served ‘‘expressly consents to 

accept service in this manner.’’ 41 Most 

commenters supported permitting email 

service, at least in principle, while 

raising concerns about how this option 

might function in practice and offering 

alternative proposals.42 A number of 

commenters questioned what ‘‘express 

consent’’ would entail and how it might 

be sought from and given by grantees. 

Three commenters considered obtaining 

express consent to be too burdensome 

for the terminating party,43 and Authors 

Guild et al. recommended that the 

remitter instead be allowed to ‘‘selfcertify’’ that the notice was sent to an 

email address, such as ‘‘an alias 

dedicated to receiving legal notices,’’ 

found after a ‘‘reasonable 

investigation.’’ 44 Several commenters— 

both in support of and opposed to email 

service—noted that any consent must be 

provided from a person with authority 

to do so,45 and sufficiently close in time 

to when a notice is served.46 Others 

urged the Office to require safeguards to 

prevent notices from being sent to 

outdated emails or filtered out as spam 

or junk email.47 Commenters proposed 

various requirements to address these 

concerns, including that the Copyright 

Office be copied on notices served by 

email,48 that a terminating party obtain 

an acknowledgment of receipt from the 

grantee,49 and that a physical courtesy 

copy be sent to the grantee.50

Based on these comments, the Office 

has revised the proposed rule to further 

specify conditions by which the 

terminating party may obtain consent 

from the grantee, and also to establish 

two alternate, blanket options by which 

grantees may signal their acquiescence 

to email service from any potential 

terminating parties. With respect to the 

direct authorization option, the final 

rule requires the terminating party to (1) 

obtain express consent in writing from 

the grantee, successor-in-title, or agent 

thereof who is duly authorized to accept 

service on its behalf; (2) within thirty 

days before service of the notice is 

made; and (3) send the notice to an 

email address provided to the 

terminating party by the grantee or 

successor-in-title. The first added 

requirement responds to commenter 

concerns that consent be given by 

someone with the appropriate authority. 

The Office has found a similar approach 

in a different context to be successful, 

namely permitting email service of 

notices of intention and statements of 

account under section 115 with the 

consent of the copyright owner or its 

authorized agent.51 Since this practice 


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intention may be submitted by email if the 

‘‘copyright owner or authorized agent states that 

such submission will be accepted’’); id. 

§ 210.6(g)(1)–(2) (permitting electronic service of 

monthly statements of account ‘‘on either the 

copyright owner or an agent of the copyright owner 

with authority to receive Statements of Account on 

behalf of the copyright owner’’); id. § 210.7(g)(1)–(2) 

(same process for annual statements of account). 

52See Public Notice Regarding Timing Provisions 

for Persons Affected by COVID–19, U.S. Copyright 

Office, https://www.copyright.gov/coronavirus/ (‘‘In 

practice, the Office understands that a majority of 

copyright owners have generally elected electronic 

delivery, but a minority receive NOIs and SOAs by 

paper, either because they simply have not opted 

into electronic delivery, or, for a smaller minority, 

because they have affirmatively expressed a 

preference for paper.’’). 

53The RIAA proposed that ‘‘[t]he regulations 

should state that failure of a grantee to respond to 

a consent request shall constitute a refusal to 

consent and that grantors will be held to the 

statutory timeframes notwithstanding any delay 

caused by the failure to respond at all or in a 

prompt manner.’’ RIAA Comments at 8. Although 

the Office agrees that grantors bear the risk that a 

grantee may not respond to a request, it sees no 

need to further regulate compliance with governing 

statutory timeframes. 

54See RIAA Comments at 2–3, 6–7 (noting that 

because ‘‘a grantee’s last known address is not 

necessarily the current owner’s up-to-date address 

. . . the service requirements do not guarantee that 

the current rights owner will have actual (or timely) 

knowledge of a purported termination’’). 

55Cf. 37 CFR 201.18(a)(6) (providing that ‘‘a 

copyright owner or an agent of a copyright owner 

with authority to receive Notices of Intention may 

make public a written policy that it will accept 

Notices of Intention to make and distribute 

phonorecords pursuant to 17 U.S.C. 115 . . . 

delivered by means (including electronic 

transmission) other than [by mail or reputable 

courier]’’). 

56See id. § 201.38; MPA Comments at 8–9; RIAA 

Comments at 7. The Office observes that this option 

is also akin to other filings administered by the 

Office, such as its list of transmitting entities 

publicly performing pre-1972 sound recordings 

requiring direct notice under the Music 

Modernization Act. See 37 CFR 201.36; Directory of 

Notices of Contact Information for Transmitting 

Entities Publicly Performing Pre-1972 Sound 

Recordings, U.S. Copyright Office, https://

www.copyright.gov/music-modernization/pre1972- 

soundrecordings/notices-contact-information.html. 

57 37 CFR 201.10(b)(1)(iii), (2)(iv). 

58 85 FR 34154–55. 

59 Joint Comments of Authors Guild et al. at 6; 

Edell Howard Comments at 5–6; MPA Comments at 

9; NMPA at 8; Recording Academy Comments at 2. 

60 Joint Comments of Authors Guild et al. at 6; 

Copyright Alliance Comments at 3–4; MPA 

Comments at 9–10; NMPA Comments at 8; RIAA 

Comments at 8–9. 

61NMPA Comments at 8. 

62RIAA Comments at 8–9. 

63See Copyright Alliance Comments at 3–4; MPA 

Comments at 10; RIAA Comments at 8. 

64Because the Office instituted this rulemaking, 

in part, to make compliance with its regulations 

governing notices of termination less burdensome, 

it declines to obligate parties to include both the 

title and registration number or include other 

identifying indicia, as some commenters proposed. 

See Edell Howard Comments at 5–6; RIAA 

Comments at 10. 

65 85 FR 34155. 

66 Id. at 34153. 

was instituted in 2014, the majority of 

copyright owners have consented to 

service by email.52 The Office welcomes 

future feedback on how this provision 

operates in practice from both 

terminating parties and grantees. 

In establishing this provision, the 

Office notes that the requirement that 

consent be obtained within thirty days 

before a notice is served ensures that 

terminating parties obtain consent close 

in time to serving a notice and affords 

grantees greater predictability about 

when they can expect to receive the 

notice. If for any reason a grantee does 

not reply to a request for or declines 

consent, the terminating party continues 

to bear the burden of serving the notice 

in acceptable manner, provided there is 

still time within the statutory 

framework to do so.53 For this reason, 

terminating parties seeking consent to 

serve a notice by email should afford 

sufficient time to arrange for an 

alternate method of service. Finally, the 

third added requirement—that the 

terminating party serve the notice to an 

email address provided by the grantee— 

protects both terminating parties and 

grantees from the risk that notices could 

be filtered as spam or sent to inactive or 

unmonitored email addresses. In this 

respect, service by email may be more 

reliable than physical service because 

mailed notices need only be sent to the 

last known address for the grantee, 

which may not be up-to-date.54

In addition to providing an avenue for 

express consent in this manner, the final 

rule establishes two other ways that 

grantees may generally opt in to accept 

email service for notices. First, a grantee 

or successor-in-title may designate and 

publicly post on its website an email 

address either for service of process in 

general or for service of notices of 

termination specifically.55 Should a 

grantee no longer wish to accept service 

of notices by email, it can modify its 

policy or website accordingly. Because 

a grantee may update its policies or its 

website at any time, however, it would 

be prudent for the terminating party to 

verify the grantee’s current policies and 

contact information by checking its 

website immediately prior to serving a 

notice by email. 

Finally, the final rule will enable a 

grantee to opt in to email service in the 

event the Copyright Office establishes a 

public directory for these purposes and 

the grantee registers an email address in 

accordance with Office instructions. 

Two commenters proposed such a 

registry, akin to the directory the Office 

established and maintains for 

designated agents under the Digital 

Millennium Copyright Act.56 Although 

the Office has no immediate plans for 

creating this option, it is taking this 

opportunity to establish the regulatory 

framework to facilitate such a directory 

in the future. 

D. Identification of a Work 

Under the current rule, a title is 

required to identify each work in a 

notice, and the original registration 

number is to be provided ‘‘if possible 

and practicable.’’ 57 The NPRM 

proposed to amend this provision to 

allow works to be identified by title, 

registration number, or both.58

Most commenters supported the 

overall goal of encouraging terminating 

parties to include registration numbers 

for works identified in a notice.59

Several expressed concern, however, 

that allowing a work to be identified 

solely by registration number might lead 

to material errors and make it more 

difficult for grantees to identify works.60

NMPA noted that ‘‘catalogues of many 

music publishers include the titles of 

works, but do not always include 

registration numbers,’’ 61 while RIAA 

observed that using a registration 

number alone may be inadequate to 

identify a sound recording that was 

registered as part of an album.62

Commenters also questioned why the 

rule change was needed, as almost all 

grantors who have the registration 

number for a work would also have its 

title, particularly because a certificate of 

registration includes both.63

In light of the public comments, the 

Office concludes that the benefit of 

providing flexibility about how works 

may be identified in a notice is 

outweighed by the negative 

consequences that could flow from 

permitting a work to be identified by 

registration number alone. The final rule 

accordingly removes this proposed 

change. The Office will continue to 

require that each work in a notice be 

identified by title and, where possible 

and practicable, by the original 

registration number.64

E. Date of Recordation 

Under the proposed rule, the date of 

recordation for a notice of termination 

would be determined by the date when 

the notice is received by the Office, 

irrespective of when the accompanying 

fee and statement of service are 

received.65 The Office proposed this 

change because assigning a later date of 

recordation due to a fee miscalculation 

or immaterial filing error could deprive 

a terminating party of the opportunity to 

exercise their rights if the date assigned 

falls on or after the effective date of 

termination.66 In support of the 


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67Edell Howard Comments at 5–6; NSAI 

Comments at 4 (noting ‘‘it is not uncommon for 

errors to be made or documents to be omitted 

during the filing’’ and the ‘‘termination window 

may close before the filer is even given notice that 

something is missing, inadequate or incorrect’’); 

Recording Academy Comments at 2 (noting there 

are ‘‘innumerable clerical errors, unintended 

omissions, and other mistakes that could delay the 

timely recordation of a termination notice and force 

an author to lose the ability to effectuate 

termination’’). 

68Edell Howard Comments at 5–6. 

69MPA Comments at 10; see also RIAA 

Comments at 10–11. 

70NMPA Comments at 8–9. 

71MPA Comments at 10–14; RIAA Comments at 

10. 

72MPA Comments at 14. 

73 Id. at 14. 

74 85 FR 34153. 

75Responding to NMPA’s concern about 

‘‘grantors improperly submitting notices to the 

Office prior to serving them on grantees,’’ see 

NMPA Comments at 8–9, the Office agrees that such 

a submission would be improper because it would 

not comply with requirement that the copy of the 

notice ‘‘must be, be and certified to be, a true, 

correct, complete, and legible copy of the signed 

notice of termination as served.’’ See 37 CFR 

201.10(f)(1)(i)(A) (emphasis added). 

76The U.S. Patent and Trademark Office exercises 

similar discretion by permitting the fee to be 

submitted after the filing date of a patent 

application. See 35 U.S.C. 111(a)(3), (b)(3). 

77 Joint Comments of Authors Guild et al. at 6. 

78See Authors Alliance Comments at 1; Joint 

Comments of Authors Guild et al. at 6–7; Copyright 

Alliance Comments at 4; MPA Comments at 15; 

NSAI Comments at 10; NMPA Comments at 10; 

RIAA Comments at 12–13. 

79Authors Alliance Comments at 1–2; Joint 

Comments of Authors Guild et al. at 6. 

80Edell Howard Comments at 8. 

81Authors Alliance Comments at 2; see also 

NMPA Comments at 10 (‘‘[The form] could also be 

accompanied by clear and detailed instructions and 

guidance as to a remitter’s obligations under the 

Copyright Act and under the Office’s regulations, 

and could clearly state the requirements for service 

as well as the timeline for service, effective date of 

termination, and recordation’’); RIAA Comments at 

12–13 (suggesting a form follow the approach of 

questionnaires found in sections 2310.13(A)–(C) of 

the Compendium). 

82NMPA Comments at 10. 

proposed rule, some commenters 

offered justifications similar to the 

Office’s reasoning in the NPRM.67 For 

example, Linda Edell Howard said the 

proposed change would avoid the 

‘‘harsh consequences that can result 

where a submission is missing a 

required element,’’ which may not be 

discovered until after the effective date 

of termination.68 Other commenters 

opposed the proposed rule, primarily 

out of concern that remitters will submit 

the required elements to record a notice 

‘‘piecemeal.’’ 69 While NMPA did not 

oppose allowing remitters to retain their 

date of recordation when correcting 

‘‘nonmaterial errors,’’ it expressed 

concern that the proposed change could 

result in parties failing to comply with 

the statutory service requirements and 

recommended that the statement of 

service be received before the effective 

date of termination.70 Both MPA and 

RIAA opposed assigning a date of 

recordation before the effective date of 

termination if any element is received 

by the Office after the effective date.71

As an alternative, MPA proposed that an 

‘‘incomplete package’’ should be 

promptly recorded as a ‘‘document 

pertaining to a copyright’’ under section 

205 of the Copyright Act, the record 

annotated with the missing and/or 

pending element(s), and a thirty-day 

time limit imposed for the remitter to 

provide the missing element(s).72 Under 

MPA’s proposal, if any missing 

elements were received after the 

effective date of termination, the Office 

should refuse to record the notice.73

After considering these comments, the 

Office is proceeding with the substance 

of the change proposed in the NPRM. 

The Office continues to believe that 

delinking the date of recordation from 

receipt of a complete submission is 

appropriate in order ‘‘to mitigate the 

harsh consequences that can result 

where a submission is missing certain 

required elements.’’ 74 To respond to the 

concerns of commenters who opposed 

this change, the Office clarifies its 

examination practices regarding 

incomplete recordation submissions. 

Where the statement of service is 

missing, the recordation specialist will 

correspond with the remitter to request 

it.75 Likewise, where no fee is received 

or there is a balance resulting from 

underpayment (e.g., the remitter 

miscalculated the number of works 

identified in the notice), the specialist 

will correspond.76 In any event, 

whenever a recordation specialist 

corresponds with a remitter—whether to 

correct an immaterial error, obtain a 

statement of service, or ensure the fee is 

paid in full—a response must be 

received within forty-five days or the 

submission may be closed, i.e., the 

document will not be recorded by the 

Office. In addition, remitters must 

certify under penalty of perjury that the 

recordation submission is ‘‘complete to 

the best of [the remitter’s] knowledge, 

information, and belief, and is provided 

in good faith.’’ To the extent a remitter 

attempts to ‘‘lock in’’ a date of 

recordation by intentionally submitting 

elements piecemeal, he or she 

presumably would be running afoul of 

this requirement. Thus, existing 

procedural safeguards help to minimize 

abuse and ensure that recordation 

submissions are not held open 

indefinitely. The Office will monitor the 

effect of this adjustment as it 

administers the recordation system for 

notices of termination. 

In addition, the final rule makes one 

modification to the proposed rule by 

adding the phrase ‘‘a copy of’’ before 

‘‘notice of termination.’’ This change, 

recommended by Authors Guild et al., 

aligns the regulation with the statutory 

language requiring ‘‘a copy of’’ the 

notice to be submitted for recordation 

and dispels any potential confusion that 

the original notice should be submitted 

to the Office.77

III. Statements of Policy on Subjects of 

Inquiry 

As part of the NPRM, the Office 

sought public comments on two 

additional subjects of inquiry: (1) 

Whether the Office should develop a 

sample form or template for use in 

preparing notices of termination; and (2) 

how the Office might address defective 

or untimely notices filed by third-party 

agents. In addition, some commenters 

offered proposals for regulatory change 

on various other termination-related 

matters. The Office addresses the 

comments received on these topics as 

follows. 

A. Sample Form or Template 

Many commenters supported the 

development of an optional, fillable 

form for use in preparing notices of 

termination.78 For example, Authors 

Alliance offered its ‘‘wholehearted 

support’’ for a form, noting that 

termination rules are ‘‘complicated and 

formalistic,’’ while Authors Guild et al. 

opined that ‘‘[a]n online form that 

creators could fill out to generate a letter 

would be ideal.’’ 79 One commenter, 

however, opposed such a form, 

concluding that although ‘‘75% of the 

boilerplate language in the notices is 

conducive to the benefits of a template 

. . . the ‘meat and bones’ of the actual 

notice . . . is so fact-sensitive that 

trying to fill in blanks in specific 

sections of a form notice would prove 

futile and onerous.’’ 80

With respect to the specific nature of 

such a form, several commenters urged 

the Office to include detailed 

instructions and guidance ‘‘to help 

creators understand what information is 

required, where to find the required 

information, and how to proceed where 

there is uncertainty.’’ 81 Others provided 

additional suggestions. NMPA 

recommended that the form distinguish 

between required and optional 

information.82 MPA stressed that it 

should be made clear that use of any 

form supplied by the Office to create a 

notice would not be determinative of a 

notice’s validity or legal effect, which 

could still be challenged by any party 


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83MPA Comments at 15. 

84Copyright Alliance Comments at 4. 

85NMPA Comments at 10; see RIAA Comments 

at 13 (‘‘While we understand the potential appeal 

of an online notice builder, we are concerned that 

efforts will be made to blame the notice builder if 

grantors provide incorrect or inadequate 

information and the notice builder creates a 

deficient notice.’’). 

86Copyright Alliance Comments at 4. 

87 Joint Comments of Authors Guild et al. at 6– 

7. 

88See Compendium (Third) sec. 2310; Notices of 

Termination, U.S. Copyright Office, https://

www.copyright.gov/recordation/termination.html. 

89For information about collaboration and testing 

opportunities relating to the electronic recordation 

system pilot, contact the Office by email at 

recordation-pilot@copyright.gov. 

90 85 FR at 34154. 

91NMPA Comments at 11; RIAA Comments at 13; 

see also MPA Comments at 15–16. 

92See Edell Howard Comments at 6–7; NSAI 

Comments at 2–3, 5–7. 

93NSAI Comments at 7; see Copyright Alliance 

Comments at 4 (supporting NSAI’s proposal). 

94Edell Howard Comments at 9. 

95 Id. at 9; NSAI Comments at 7. 

96 Joint Comments of Authors Guild et al. at 7. 

97NSAI suggested that ‘‘[t]o avoid the concern of 

disclosing personally identifiable information in the 

public record, grantor contact information should 

be redacted in the record and available only to the 

Copyright Office for administration purposes.’’ 

NSAI Comments at 7. Rather than selectively redact 

information provided as part of a recordation 

submission, which would make administration of 

this feature more onerous and thus expensive to 

remitters, the Office instead plans to make this field 

optional. 

claiming the legal or formal 

requirements have not been met.83 And 

the Copyright Alliance noted that 

grantors who elect not to use a sample 

form should not be penalized or 

disadvantaged.84

The NPRM also inquired whether the 

Office should consider the development 

of other types of templates to assist 

terminating parties, such as an online 

notice builder that would allow parties 

to input information pertaining to the 

terminable grants, which would then be 

prepopulated into a draft notice. 

Commenters were generally supportive 

of this idea, though some expressed 

concerns about consequences stemming 

from user or system error. For example, 

NMPA observed that grantors may 

blame the notice builder for errors in 

notices and request ‘‘leniency in 

complying with their obligations under 

the statute or regulations due to that 

reliance on the Copyright Office.’’ 85

Noting similar concerns, the Copyright 

Alliance supported a notice builder 

with the caveat that ‘‘there should be a 

prominent statement making grantors 

aware of the associated risks . . . and 

those who choose to use it should be 

required to assume those risks.’’ 86

Authors Guild et al. likewise proposed 

a disclaimer if a ‘‘fillable form’’ were to 

be integrated into the electronic 

recordation system, adding that the 

Office could ‘‘program[ ] automated 

alerts that would pop up if any 

information entered by the user in the 

termination form conflicts with 

information in the registration record’’ 

so that the remitter could correct any 

errors.87

The Office will consider these helpful 

comments in connection with its 

development of further public guidance, 

such as developing a sample form and/ 

or other online information or tools to 

assist in preparing notices of 

termination, together with enhanced 

educational materials. Meanwhile, the 

Office currently provides information 

about preparing, serving, and recording 

notices of termination—including charts 

that may be used to calculate the 

statutory windows for service and 

recordation under sections 203 and 

304(c)—in the Compendium and on a 

dedicated web page.88 The Office 

encourages interested parties to consult 

those existing resources and stay tuned 

for future information. The Office plans 

to continue stakeholder outreach to 

assess the extent to which additional 

help text or other resources could be 

integrated into the online recordation 

system as development proceeds.89

B. Third-Party Agents 

In the NPRM, the Office noted 

stakeholder concerns regarding thirdparty agents who fail to comply with 

legal requirements when serving or 

recording termination notices on behalf 

of copyright owners. Noting that such 

failures can jeopardize termination 

rights if not discovered in a timely 

manner, the Office requested comment 

on whether any regulatory changes 

should be considered to address these 

concerns.90

The comments reflected some 

disagreement as to the pervasiveness of 

the problem and the appropriate means 

to address it. NMPA and RIAA 

suggested that the scope of the problem 

is unclear and cautioned against any 

regulatory change that would excuse 

untimeliness or other noncompliance 

with legal or regulatory requirements.91

In their view, the proper recourse for 

parties harmed by the actions or 

inaction of their agents is to seek redress 

through malpractice or other claims 

under agency law. Linda Edell Howard 

and NSAI, however, cited several 

examples of third-party agents who 

apparently failed to respond to Office 

correspondence about defective or 

incomplete filings with the result that 

the issues were not, and could not be, 

resolved before the termination window 

expired.92 To address the issue, NSAI 

proposed requiring third-party agents to 

provide complete contact information 

for the grantor, which would be verified 

by return-receipt mail upon receipt of 

the notice by the Office, and for the 

Office to copy the grantor on any 

subsequent correspondence with the 

agent.93 Similarly, Edell Howard 

proposed revising Form TCS to allow 

remitters the option to provide contact 

information for any terminating party, 

for the Office to provide return receipts 

for notices submitted for recordation, 

and for the Office to copy the 

terminating party on any 

correspondence sent to the remitter.94

Edell Howard and NSAI further 

suggested that the Office could make inprocess recordation submissions 

publicly available.95 Authors Guild et 

al. suggested that Office could consider 

‘‘a process whereby grantors may 

periodically designate and certify thirdparty agents using the [Electronic 

Copyright System].’’ 96

After considering these comments, the 

Office proposes no additional regulatory 

changes to address harm resulting from 

filing errors made by third-party agents. 

Instead, the Office will update its forms 

and practices by adding an optional 

field in both Form TCS and the 

electronic recordation system that 

remitters may use to provide email 

contact information for any terminating 

party. This contact information, like all 

information provided as part of a 

recordation submission, will be 

included in the public record. Where 

party contact information is provided, 

recordation specialists will copy the 

party on any correspondence with the 

remitter about errors or omissions as 

well to inform them when the certificate 

of recordation is issued. The Office 

declines to make the provision of this 

information mandatory because the 

Office understands that some parties 

may retain agents in part because they 

do not want their contact information to 

be made public.97 The Office likewise 

declines to require Recordation staff to 

affirmatively notify terminating parties 

by return receipt that a notice has been 

filed, as such an obligation would add 

to the existing administrative burden of 

processing paper notices, thereby 

undermining the efficiency of the 

process for participants. Additional 

commenter proposals to make inprocess notices publicly available, to 

allow terminating parties to designate 

agents, or to notify terminating parties 

when a notice is submitted for 

recordation will be considered as 

development of the online recordation 


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98Public comments included several other 

proposals to modernize various aspects of the 

recordation process that are outside the scope of the 

proposed rule and subjects of inquiry. See, e.g., 

Authors Alliance Comments at 3 (proposing that the 

Office ‘‘consider developing or integrating tools that 

help authors understand the complex timing 

provisions governing notice and termination 

windows’’); Edell Howard Comments at 3, 9, 10 

(proposing, inter alia, that the Office allow the 

public to view recorded notices online and 

download certificates of recordation); NMPA 

Comments at 10 (proposing that works identified in 

notices be linked to the registration record); NSAI 

Comments at 8 (proposing, inter alia, that the Office 

might notify authors of when termination rights 

may be maturing or closing by using registration 

records). The Office will consider these proposals 

as its further regulatory and technology 

modernization efforts proceed, to the extent they 

are permitted by law. 

and public record pilot systems 

continues.98

List of Subjects in 37 CFR Part 201 

Copyright, General provisions. 

Final Regulations 

For the reasons set forth in the 

preamble, the Copyright Office amends 

37 CFR part 201 as follows: 

PART 201—GENERAL PROVISIONS 

■ 1. The authority citation for part 201 

continues to read as follows: 

Authority: 17 U.S.C. 702. 

■ 2. Amend § 201.10: 

■ a. By revising paragraphs (d)(1) and 

(e)(1); 

■ b. In paragraph (f)(1)(ii)(A): 

■ i. By removing ‘‘will’’ from the first 

and second sentences and adding 

■ ii. By adding ‘‘on or’’ after ‘‘the date 

of recordation is’’; and 

■ c. In paragraph (f)(3), by removing ‘‘all 

of the elements required for recordation, 

including the prescribed fee and, if 

required, the statement of service, have 

been’’ and adding in its place ‘‘a copy 

of the notice of termination is’’. 

The revisions read as follows: 

§ 201.10 Notices of termination of 

transfers and licenses. 

* * * * * 

(d) * * * 

(1) The notice of termination shall be 

served upon each grantee whose rights 

are being terminated, or the grantee’s 

successor in title, by: 

(i) Personal service; 

(ii) First class mail sent or by 

reputable courier service delivered to an 

address which, after a reasonable 

investigation, is found to be the last 

known address of the grantee or 

successor in title; or 

(iii) Means of electronic transmission 

to: 

(A) An email address designated for 

service of notices of termination and/or 

legal process that is listed as such on the 

website of the grantee or successor in 

title in a location accessible to the 

public; 

(B) An email address provided to the 

terminating party by the grantee or 

successor in title, provided that the 

grantee, successor in title, or an agent 

thereof who is duly authorized to accept 

service on behalf of the grantee or 

successor in title expressly consents in 

writing to accept service at the address 

provided within thirty days before such 

service is made; or 

(C) An email address for the grantee 

or successor in title provided in 

accordance with instructions provided 

on the Office’s website in a public 

directory that the Office in its discretion 

may establish and maintain. 

* * * * * 

(e) * * * 

(1) Harmless errors in a notice, 

statement of service, or indexing 

information provided electronically or 

in a cover sheet shall not render the 

notice invalid. For purposes of this 

paragraph, an error is ‘‘harmless’’ if it 

does not materially affect the adequacy 

of the information required to serve the 

purposes of 17 U.S.C. 203, 304(c), or 

304(d), whichever applies. 

* * * * * 

Dated: February 8, 2021. 

Shira Perlmutter, 

Register of Copyrights and Director of the 

U.S. Copyright Office 

Approved by: 

Carla D. Hayden, 

Librarian of Congress. 

[FR Doc. 2021–03906 Filed 2–25–21; 8:45 am] 

BILLING CODE 1410–30–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

45 CFR Part 75 

RIN 0991–AC16 

Health and Human Services Grants 

Regulation 

AGENCY: Office of the Assistant 

Secretary for Financial Resources 

(ASFR), Health and Human Services 

(HHS or the Department). 

ACTION: Notification; postponement of 

effectiveness. 

SUMMARY: The U.S. District Court for the 

District of Columbia in Facing Foster 

Care et al. v. HHS, 21–cv–00308 (D.D.C. 

Feb. 2, 2021), has postponed the 

effectiveness of portions of the final rule 

making amendments to the Uniform 

Administrative Requirements, 

promulgated on January 12, 2021. Those 

provisions are now effective August 11, 

2021. 

DATES: February 9, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Johanna Nestor at Johanna.Nestor@

hhs.gov or 202–205–5904. 

SUPPLEMENTARY INFORMATION: On 

January 12, 2021, the Department issued 

amendments to and repromulgated 

portions of the Uniform Administrative 

Requirements, 45 CFR part 75. 86 FR 

2257. That rule repromulgated 

provisions of part 75 that were 

originally published late in 2016. It also 

made amendments to 45 CFR 75.300(c) 

and (d). 

Specifically, the rule amended 

paragraph (c), which previously 

provided that it is a public policy 

requirement of HHS that no person 

otherwise eligible will be excluded from 

participation in, denied the benefits of, 

or subjected to discrimination in the 

administration of HHS programs and 

services based on non-merit factors such 

as age, disability, sex, race, color, 

national origin, religion, gender 

identity, or sexual orientation. 

Recipients must comply with this 

public policy requirement in the 

administration of programs supported 

by HHS awards. The rule amended 

paragraph (c) to provide that it is a 

public policy requirement of HHS that 

no person otherwise eligible will be 

excluded from participation in, denied 

the benefits of, or subjected to 

discrimination in the administration of 

HHS programs and services, to the 

extent doing so is prohibited by federal 

statute. 

Additionally, the rule amended 

paragraph (d), which previously 

provided that in accordance with the 

Supreme Court decisions in United 

States v. Windsor and in Obergefell v. 

Hodges, all recipients must treat as valid 

the marriages of same-sex couples. This 

does not apply to registered domestic 

partnerships, civil unions or similar 

formal relationships recognized under 

state law as something other than a 

marriage. The rule amended paragraph 

(d) to provide that HHS will follow all 

applicable Supreme Court decisions in 

administering its award programs. 

On February 2, the portions of 

rulemaking amendments to § 75.300 

(and a conforming amendment at 

§ 75.101(f)) were challenged in the U.S. 

District Court for the District of 

Columbia. Facing Foster Care et al. v. 

HHS, 21–cv–00308 (D.D.C. filed Feb. 2, 

2021). On February 9, the court 

postponed, pursuant to 5 U.S.C. 705, the 

effective date of the challenged portions 

of the rule by 180 days, until August 11, 


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