[Federal Register Volume 65, Number 14 (Friday, January 21, 2000)]
[Proposed Rules]
[Pages 3404-3406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-1293]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. 2000-1]


Copyright Rules and Regulations: Information Given by the 
Copyright Office

AGENCY:  Copyright Office, Library of Congress.

ACTION:  Notice of proposed rulemaking.

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SUMMARY:  The Copyright Office is proposing amendments to its 
regulations governing information given to the public for litigation 
purposes in cases where the application for registration is still in-
process. The Office is also proposing to publish in regulatory text the 
existing requirement for submission of a Litigation Statement when a 
third party needs copies of material accompanying a registration claim 
for use in actual or pending litigation and other minor clarifications 
to these regulations. These proposed amendments will allow a qualified 
party greater access to in-process registration materials and also 
provide clearer information to the public on how to get these 
materials.

DATES:  Written comments are due March 21, 2000.

ADDRESSES:  An original and ten copies of the comments should be 
addressed, if sent by mail, to: David O. Carson, General Counsel, 
Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC 
20024. If delivered by hand, an original and ten copies should be 
delivered to: Office of the General Counsel, United States Copyright 
Office, James Madison Memorial Building, Room 403, First Street and 
Independence Avenue, S.E., Washington, DC.

FOR FURTHER INFORMATION CONTACT:  David O. Carson, General Counsel, or 
Patricia L. Sinn, Senior Attorney, Copyright GC/I&R, P.O. Box 70400, 
Southwest Station, Washington, DC 20024. Telephone: (202) 707-8380. 
Fax: (202) 707-8366.

SUPPLEMENTARY INFORMATION:

1. Background

    The Copyright Act makes the Register of Copyrights responsible for 
all administrative functions and duties under title 17 and authorizes 
the Register to establish regulations for this administration. 17 
U.S.C. 701, 702. As an Office of public record, the Copyright Office 
provides a public record of completed registrations and recordations, 
and it permits access to these records and to the materials or files 
accompanying a registration claim--the application, the deposit, and 
any correspondence--when the conditions specified in the regulations 
are met. See 17 U.S.C. 705, 706. See also 37 CFR 201.2.
    The Copyright Office's existing regulations tell the public how to 
get information on or access to such registration materials. 37 CFR 
202.1, 202.2. In the past, the regulations have distinguished between 
providing these materials to copyright claimants and providing them to 
third parties, and also between providing copies in cases where the 
claim has been examined and registered or refused and in those where 
the claim is still pending or in-process. By in-process the Office 
means those materials, including correspondence files, applications, 
and deposit copies,

[[Page 3405]]

associated with claims to registration that are still being processed 
and those for which the process has been reopened.
    The Copyright Office already permits limited access to in-process 
files. See 37 CFR 201.2(b)(2)-(5), 201.2(c)(1)-(2). However, the Office 
no longer sees a reason to distinguish between a request for material 
from an in-process file and material from a closed file when a 
qualified party needs this material for litigation purposes. The 
Office, therefore, proposes amending its regulations to permit the 
making of copies of material accompanying in-process claims--including 
the deposit--in the same circumstances relating to litigation as those 
in which copies may be made from a closed file. See 37 CFR 
201.2(d)(2)(ii).
    Information needed to initiate a search.\1\ A party requesting a 
search for any material accompanying a registration claim in order to 
get information, inspect, or get copies of such material must provide 
as much specific information as possible about the material desired, 
including facts such as the name(s) of the copyright claimant(s) of 
record (or his or her designated agent), the title(s) of the work(s) to 
be located and copied; and the date(s) the work(s) was submitted for 
registration. See 37 CFR 201.2(b)(3)(i).
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    \1\ See generally Circular 6. For information on searching the 
Office's records to investigate the copyright status of a work see 
Circular 22.
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    Access to contents of works. Currently, the Office outlines 
procedures for gaining access to registration records or materials in 
37 CFR 201.2(b). Often a request for access to these materials is 
associated with legal proceedings. In particular, Sec. 201.2(b)(5) 
permits access to in-process files by someone other than the copyright 
claimant in extraordinary circumstances; in practice the circumstances 
under which this relief has been granted are equivalent to actual or 
prospective litigation. The Office proposes amending this subsection to 
allow the making of copies of such material available in cases 
identical to those already set out in 37 CFR 201.2(d) for closed files 
wherein a qualified party may request certified or uncertified 
reproductions of copies, phonorecords, or other identifying material 
deposited in connection with registration of a work. Section 
201.2(d)(1) specifies what information should be included in the 
request to get copies of records. Section 201.2(d)(2) specifies three 
conditions in which copies may be made of registration materials. They 
are: (1) at the written request of the claimant, or his or her 
designated agent, or from an owner of exclusive rights; (2) at the 
written request of an attorney for litigation purposes; and (3) upon 
receipt of a court order. The proposed regulations would permit access 
to and copying of in-process files under the same circumstances found 
in 201.2(d)(2) and (3).\2\ In the second situation the attorney or 
authorized representative must file a Litigation Statement with the 
Copyright Office.
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    \2\ Copyright Office regulations already permit copies of in-
process files in the first situation.
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2. Use of the Litigation Statement

    The proposed amendment requires use of a Litigation Statement for 
requesting in-process materials to be used in litigation. The Office 
has recommended the use of a Litigation Statement for completed files 
for a long time. In 1991, it announced that in order to obtain copies 
of material deposited with the Office in support of a registration 
claim, an attorney or authorized agent had to submit a Litigation 
Statement. 56 FR 12957 (March 29, 1991). A party that provides a false 
statement of a material fact in a Litigation Statement is subject to 
criminal penalties under the terms of 18 U.S.C. 1001. Currently, the 
Litigation Statement requires that the materials sought be identified 
by registration number, year of registration, and title and description 
of the work. The Litigation Statement also requires a description of 
the active or prospective litigation for which the material is to be 
used, including:
    1. Name and address of client (or person requesting the material).
    2. Whether the client is or may become Plaintiff or Defendant in 
litigation.
    3. Name of the other party.
    4. Nature of the controversy.
    5. Name of court if proceedings have been instituted.

If the litigation is prospective, the Litigation Statement requires a 
statement of the facts surrounding the controversy and a copy of any 
letter or other document that supports the claim that litigation may be 
instituted.
    Just above the signature line, the following statement appears: ``I 
hereby affirm to the Copyright Office that a controversy exists and 
that the requested copy will be used only in connection with the 
specified actual or prospective litigation. I also acknowledge that any 
other use of this copy would be in violation of the Regulations of the 
Copyright Office 37 CFR 201.2(d)(2).''
    The Litigation Statement also includes a warning that any false 
statement of a material fact made on the form may be a criminal 
offense, with a reference to 18 U.S.C. 1001 et seq. The texts of 18 
U.S.C. 1001 and 37 CFR 201.2(d)(2) are reproduced on the back of the 
Litigation Statement.
    A Litigation Statement may be requested from the Certification and 
Documents Section of the Information and Reference Division. The Office 
keeps a record of requests for copies of registration materials made 
using the Litigation Statement for at least three years, and this 
system of records is available to the public through the Certification 
and Documents Section.
    When the Office adopts final rules concerning access to and copying 
of in-process materials, it will make minor amendments to the existing 
Litigation Statement to conform with those regulations. For example, it 
will change Registration No. to Registration No. or Control No. if an 
application is pending, and broaden the term ``Copyright Registration'' 
to cover both completed registrations and applications for copyright 
registration that are still pending.

3. Other Amendments

    The Office is also proposing minor amendments to 37 CFR 201.1(c) 
and (d) and 201.2(b)(6), (b)(7) and (c)(4) to update official addresses 
and to clarify what kind of information the Office can or cannot 
supply.

4. Questions for Public Comment

    The Copyright Office requests public comment on any aspect of these 
regulations but especially the following:
    1. Should a party who needs copies of material for use in pending 
or actual litigation be permitted to get copies of in-process materials 
in the same way that he or she can if the work had been registered or 
the file closed? Why or why not?
    2. Should additional information or documentation be required from 
those who file a Litigation Statement? For example, to verify that a 
party requesting information is truly involved in actual or prospective 
litigation, should the party be required to submit a copy of a document 
(e.g. the complaint or, in the case of prospective litigation, 
correspondence to or from an alleged infringer) that describes what the 
dispute over a copyrighted work entails?
    3. If litigation is prospective rather than actual, should the 
Office contact the copyright owner or any other party to verify the 
likelihood of litigation?

[[Page 3406]]

List of Subjects in 37 CFR Part 201

    Copyright.
    In consideration of the foregoing, it is proposed that part 201 of 
37 CFR be amended 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. Sections 201.1(c) and (d) are revised to read as follows:


Sec. 201.1  Communications with the Copyright Office.

* * * * *
    (c) Copies of records or deposits. Requests for copies of records 
or deposits should be addressed to the Library of Congress, Copyright 
Office, Certifications and Documents Section, LM-402, 101 Independence 
Avenue, S.E., Washington, D.C. 20559-6000.
    (d) Search of records. Requests for searches of registrations and 
recordations in the completed catalogs, indexes, and other records of 
the Copyright Office should be addressed to the Library of Congress, 
Copyright Office, Reference & Bibliography Section, LM-451, 101 
Independence Avenue, S.E., Washington, D.C. 20559-6000.
    3. Section 201.2 is amended as follows:
    a. By revising paragraphs (b)(5) and (b)(6);
    b. By removing the last sentence of paragraph (b)(7) and adding two 
sentences in its place;
    c. By revising paragraph (c)(4);
    d. In paragraph (d)(2) introductory text, by adding the phrase ``or 
an application for copyright registration'' after the phrase ``in 
connection with a copyright registration''; and
    e. By revising paragraph (d)(2)(ii) introductory text.
    The revisions to Sec. 201.2 read as follows:


Sec. 201.2  Information given by the Copyright Office.

* * * * *
    (b) * * *
    (5) In exceptional circumstances the Register of Copyrights may 
allow inspection or even copying of pending applications and open 
correspondence files by someone other than the copyright claimant, upon 
submission of a written request which is deemed by the Register to show 
good cause for such access and establishes the person making the 
request is one properly and directly concerned. Any request for such 
access or copying of this material should be directed to the 
Certifications and Documents Section which will either refer the 
requestor to the General Counsel, or if litigation is involved, send 
the requestor the Copyright Office's form known as a Litigation 
Statement. If a Litigation Statement is required, it must be submitted 
on the Office's form, comply with Sec. 201.2(d)(2) (ii), contain an 
original signature, and be returned to the Certifications and Documents 
Section at the address given in 37 CFR 201.1(c).
    (6) Direct public access will not be permitted to any financial or 
accounting records, including records maintained on Deposit Accounts.
    (7) * * * As the Office updates and revises certain chapters of 
Compendium II, it will make the information available on the Copyright 
Office's web site. This information is also available for public 
inspection and copying in the Certifications & Documents Section.
    (c) * * *
    (4) The Copyright Office will not respond to any abusive or 
scurrilous correspondence or correspondence where the intent is 
unknown.
    (d) * * *
    (2) * * *
    (ii) The Copyright Office receives and approves on a form requested 
from the Certification and Documents Section, a Litigation Statement 
containing a request from an attorney on behalf of either a plaintiff 
or defendant in connection with litigation, actual or prospective, 
involving a registered work or a work on which registration is sought. 
The following information must be included in such a request:
* * * * *

    Dated: January 13, 2000.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 00-1293 Filed 1-20-00; 8:45 am]
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