3404 Federal Register / Vol. 65, No. 14 / Friday, January 21, 2000 / Proposed Rules

is able to perform the services necessary to

fulfill its obligation under the contract by

assigning only three of its employees, each

with the same rate of compensation, to

render services both within and without the

United States during the taxable year. Since

the rate of compensation is the same, it can

be assumed that all employees are adding the

same value to the product. The total number

of employee-days necessary to complete the

contract is 30 days of which 10 days were

spent performing services within the United

States. Under these facts and circumstances,

an apportionment on a time basis would be

the basis that most correctly reflects the

proper source of the income. The amount of

compensation for labor or personal services

performed in the United States will be that

amount that bears the same relation to the

total compensation as the number of days of

performance of the labor or services within

the United States bears to the total number

of days of performance of labor or services for

which the payment is made. Thus, $5,000

will be compensation from labor or personal

services performed in the United States

($15,000 × 10/30).

Example 3. B, a nonresident alien

individual, was employed by M, a domestic

corporation, from March 1 to June 12 of the

taxable year, a total of 104 days, for which

B received compensation in the amount of

$12,240. Under the contract, B was subject to

call at all times by M and was in a payment

status on a 7-day week basis. Pursuant to the

contract, B performed services within the

United States for 59 days and performed

services without the United States for 45

days. Under subparagraph (b)(2) of this

section, the amount of compensation from

labor or personal services performed in the

United States will be determined on a time

basis and equal to $6,943.85 ($12,240 × 59/

104).

Example 4. (i) A, a United States citizen,

is employed by a domestic corporation. A

earns an annual salary of $100,000. During

the first quarter of the calendar year, A’s post

of duty is in the United States and A

performs services entirely within the United

States during this period. A is transferred to

Country X for the remaining three-quarters of

the year, and, in addition to A’s annual

salary, receives $75,000 in fringe benefits that

relate to the foreign posting. These fringe

benefits are paid separately from A’s annual

salary and are specifically stated to be a

housing allowance and an allowance for

family home leave. Under A’s employment

contract, A is required to work on a 5-day

week basis, Monday through Friday. During

the last three quarters of the year, A performs

services 30 days in the United States and 150

days abroad.

(ii) A has $175,000 gross income for the

taxable year from the performance of

services. A is able to clearly establish that A’s

transfer created two distinct, separate, and

continuous time periods within the calendar

year. Accordingly, $25,000 of the income

designated as salary is attributable to the first

quarter of the year (one quarter of $100,000).

This amount is allocated entirely to

compensation for labor or personal services

performed in the United States. The balance

of A’s adjusted gross income, $150,000

(which includes the $75,000 in fringe

benefits that relate to the foreign posting), is

compensation allocated to services

performed for the final three quarters of his

taxable year. During the last three quarters of

the year, A’s periodic performance of services

in the United States does not constitute

distinct, separate, and continuous periods of

time. Of this $150,000 amount, $125,000

(150/180 × $150,000) is apportioned to

compensation for labor or personal services

performed outside the United States, and

$25,000 (30/180 × $150,000) is apportioned

to compensation for labor or personal

services performed in the United States.

* * * * *

(d) Effective date. Paragraphs (a) and

(c) of this section apply with respect to

taxable years beginning after December

31, 1966, however, the first sentence of

paragraph (a)(1) applies to taxable years

beginning on or after final regulations

are published in the Federal Register.

Paragraph (b) of this section applies to

taxable years beginning on or after final

regulations are published in the Federal

Register. For paragraph (b) of this

section and corresponding rules

applicable to taxable years beginning

after December 31, 1966, and before the

date final regulations are published in

the Federal Register, see § 1.861–4(b) in

effect prior to the date final regulations

are published in the Federal Register

(26 CFR part 1 revised April 1, 1999).

For corresponding rules applicable to

taxable years beginning before January

1, 1967, see § 1.861–4 in effect prior to

October 2, 1975 (26 CFR part 1 revised

April 1, 1975).

Robert E. Wenzel,

Deputy Commissioner of Internal Revenue.

[FR Doc. 00–757 Filed 1–20–00; 8:45 am]

BILLING CODE 4830–01–U

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.

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,

Federal Register / Vol. 65, No. 14 / Friday, January 21, 2000 / Proposed Rules 3405

1See generally Circular 6. For information on

searching the Office’s records to investigate the

copyright status of a work see Circular 22.

2Copyright Office regulations already permit

copies of in-process files in the first situation.

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 inprocess 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).

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,

§ 201.2(b)(5) permits access to inprocess 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 inprocess 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.

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 inprocess 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?

3406 Federal Register / Vol. 65, No. 14 / Friday, January 21, 2000 / Proposed Rules

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:

§ 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 § 201.2 read as

follows:

§ 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 § 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]

BILLING CODE 1410–30–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[DA 99–2563; MM Docket No. 99–330; RM–

9677]

Radio Broadcasting Services;

Kankakee and Park Forest, IL

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: The Commission requests

comments on a petition filed by Gene

Milner Broadcasting Company, Inc.,

proposing the reallotment of Channel

260B from Kankakee to Park Forest,

Illinois, as the community’s first local

aural transmission service. Channel

260B can be reallotted to Park Forest in

compliance with the Commission’s

minimum distance separation

requirements without the imposition of

a site restriction at petitioner’s licensed

site. The coordinates for Channel 260B

at Park Forest are 41–18–04 North

Latitude and 87–49–35 West Longitude.

DATES: Comments must be filed on or

before February 7, 2000, and reply

comments on or before February 22,

2000.

ADDRESSES: Federal Communications

Commission, Washington, DC 20554. In

addition to filing comments with the

FCC, interested parties should serve the

petitioner, his counsel, or consultant, as

follows: Dennis J. Kelly, Esq., Post

Office Box 6648, Annapolis, Maryland

21401 (Counsel for Petitioner).

FOR FURTHER INFORMATION CONTACT:

Sharon P. McDonald, Mass Media

Bureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Notice of

Proposed Rule Making, MM Docket No.

99–330, adopted December 8, 1999, and

released December 15, 1999. The full

text of this Commission decision is

available for inspection and copying

during normal business hours in the

FCC Reference Information Center

(Room CY-A257), 445 12th Street, NW.,

Washington, DC. The complete text of

this decision may also be purchased

from the Commission’s copy contractor,

International Transcription Service,

Inc., (202) 857–3800, 1231 20th Street,

NW., Washington, DC 20036.

Provisions of the Regulatory

Flexibility Act of 1980 do not apply to

this proceeding.

Members of the public should note

that from the time a Notice of Proposed

Rule Making is issued until the matter

is no longer subject to Commission

consideration or court review, all ex

parte contacts are prohibited in

Commission proceedings, such as this

one, which involve channel allotments.

See 47 CFR 1.1204(b) for rules

governing permissible ex parte contacts.

For information regarding proper

filing procedures for comments, see 47

CFR 1.415 and 1.420.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 00–1470 Filed 1–20–00; 8:45 am]

BILLING CODE 6712–01–P