12554 Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Rules and Regulations 

temporary deviation for the Rock Island 

Railroad and Highway Drawbridge, mile 

482.9, at Rock Island, Illinois across the 

Upper Mississippi to remain in the 

closed to navigation position as the 

drawbridge is part of the Annual Quad 

Cities Heart Walk. The Rock Island 

Railroad and Highway Drawbridge 

currently operates in accordance with 

33 CFR 117.5, which states the general 

requirement that drawbridges shall open 

promptly and fully for the passage of 

vessels when a request to open is given 

in accordance with the subpart. In order 

to facilitate the annual event, the 

drawbridge must be kept in the closedto-navigation position. This deviation 

allows the bridge to remain in the 

closed-to-navigation position for two 

and one half hours from 8:30 a.m. until 

10:30 a.m., May 16, 2009. 

There are no alternate routes for 

vessels transiting this section of the 

Upper Mississippi River. 

The Rock Island Railroad and 

Highway Drawbridge, in the closed-tonavigation position, provides a vertical 

clearance of 23.8 feet above normal 

pool. Navigation on the waterway 

consists primarily of commercial tows 

and recreational watercraft. This 

temporary deviation has been 

coordinated with waterway users. No 

objections were received. 

In accordance with 33 CFR 117.35(e), 

the drawbridge shall return to its regular 

operating schedule immediately at the 

end of the designated time period. This 

deviation from the operating regulations 

is authorized under 33 CFR 117.35. 

Dated: March 10, 2009. 

Roger K. Wiebusch, 

Bridge Administrator. 

[FR Doc. E9–6686 Filed 3–24–09; 8:45 am] 

BILLING CODE 4910–15–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 201 

[Docket No. RM 2008–1] 

Recordation of Notices of Termination 

of Transfers and Licenses; 

Clarifications 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Final rule. 

SUMMARY: The Copyright Office is 

adopting amendments to its regulations 

governing the recordation of notices of 

termination and certain related 

provisions. 

DATES: EFFECTIVE DATE: March 25, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Maria Pallante, Associate Register for 

Policy and International Affairs, 

Copyright GC/I&R, P.O. Box 70400, 

Washington, DC 20024–0400. 

Telephone (202) 707–8380. Fax (202) 

707–8366. 

SUPPLEMENTARY INFORMATION: The Office 

published a Notice of Proposed 

Rulemaking in the Federal Register on 

January 23, 2008 (73 FR 3898), seeking 

public comment on five proposed 

amendments to its regulations at 

§ § 201.1, 201.3, 201.4 and 201.10 of 

Chapter 37. These were: 1) an 

amendment communicating the Office’s 

practices as to its receipt of notices of 

termination that are untimely; 2) an 

amendment clarifying that recordation 

of a notice of termination by the Office 

does not necessarily mean that the 

document is legally sufficient; 3) an 

amendment updating the legibility 

requirements for all recorded 

documents, including notices of 

termination; 4) an amendment making 

minor explanatory edits to the fee 

schedule for multiple titles within a 

document (adding ‘‘e.g. a Notice of 

Termination’’ as an example); and 5) an 

amendment establishing a new mailing 

address to which notices of termination 

should be sent. (For ease of explanation 

only, the amendments are herein 

referred to as amendments one through 

five.) 

The Office received two comments, 

each on February 22, 2008, from Law 

Professor Daniel N. Ballard, University 

of the Pacific McGeorge School of Law, 

and from Terrie Bjorkland on behalf of 

the American Federation of Television 

and Radio Artists (AFTRA). Both 

commentators questioned the basis for, 

and the likely impact of, amendment 

number two. Mr. Ballard first suggested 

that there is no justification for the 

proposed language, and second 

suggested that rather than being neutral 

on its face, the language, as worded, 

might create ‘‘an improper bias against 

the termination of copyright interests.’’ 

Ms. Bjorkland observed that the 

proposal emphasizes the inconclusive 

impact of the filing of a notice, doing 

‘‘little to give artists a sense of comfort 

that the Copyright Office is facilitating 

the protection of their right of 

termination.’’ In addition, she expressed 

opposition to amendment number one, 

questioning why the Office should make 

a determination that a notice is 

untimely, when ‘‘it is incumbent upon 

the challenging party to contest the 

validity of the notice, if appropriate.’’ 

After considering these comments, the 

Office is adopting all of the 

aforementioned amendments, but in 

doing so is rephrasing amendment 

number two. 

Background 

The Copyright Office is an office of 

public record which receives and 

records documents that pertain to 

copyright, including, specifically, 

notices of termination. Notices of 

termination may be served by authors 

(and certain heirs, beneficiaries or 

representatives of authors who are 

specified by statute) to extinguish the 

exclusive or nonexclusive grants of 

transfers or licenses of copyright or the 

divisible rights thereunder. The 

provisions have an equitable function: 

they exist to allow authors or their heirs 

a second opportunity to share in the 

economic success of their works. 

The termination provisions are set 

forth in three sections of the law: 

Sections 304(c), 304(d) and 203 of the 

1976 Copyright Act, Title 17 of the 

United States Code. The sections are 

similar, though not identical, and they 

govern distinct categories of works. 

(None of the sections applies to 

copyrights in works made for hire or 

grants made by will.) 

Section 304(c) governs any work in 

which the copyright was subsisting in 

its first or renewal term as of January 1, 

1978, and provides for termination of 

the exclusive or nonexclusive grant of a 

transfer or license of the renewal 

copyright (or any right under it) 

executed before January 1, 1978. 

Termination may be exercised at any 

time during a five year period beginning 

at the end of fifty–six years from the 

date copyright was originally secured. 

Section 304(d) provides a termination 

right for a subset of works for which the 

termination right under section 304(c) 

expired (and was not exercised) on or 

before the effective date (October 27, 

1998) of the ‘‘Sonny Bono Copyright 

Term Extension Act,’’ which extended 

the copyright term by 20 years. It 

provides for termination of the 

exclusive or nonexclusive grant of a 

transfer or license of the renewal 

copyright (or any right under it) at any 

time during a five year period beginning 

at the end of 75 years from the date 

copyright was originally secured. 

Section 203 is limited to grants 

executed by the author. It provides for 

termination of the exclusive or 

nonexclusive grant of copyright (or any 

right under copyright) executed on or 

after January 1, 1978 (regardless of 

whether the copyright was secured prior 

to 1978). Termination may be exercised 

at any time during a period of five years 

beginning at the end of thirty–five years 


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Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Rules and Regulations 12555 

1If the author executed the grant but is no longer 

living, the termination interest is owned and may 

be exercised by the author’s widow or widower and 

any children or grandchildren on a per stirpes basis 

(subject to certain conditions concerning the 

disposition of partial interests of multiple authors 

and heirs), or if the aforementioned are deceased, 

by the author’ executor, administrator, personal 

representative, or trustee. 17 U.S.C. 203(a)(1)–(2); 17 

U.S.C. 304 (c)(1)–(2); 17 U.S.C. 304(d)(1). Moreover, 

under Sections 304(c) and 304 (d), if the author is 

no longer living and the grant has been executed by 

one or more persons designated by statute, 

termination may be exercised by the surviving 

person or persons who executed it. 17 U.S.C. 304(c); 

17U.S.C. 304(d); 17 U.S.C. 304(a)(1)(c). Note that 

this is not true of Section 203, which applies only 

to grants executed by authors. 17 U.S.C. 203(a). 

from the date of publication of the work 

under the grant or at the end of forty 

years from the date of execution of the 

grant, whichever is earlier. 

By all accounts, the termination 

provisions are dense and formalistic, 

particularly for a non–lawyer. In 

summary, the author (or if the author is 

deceased, the party specified by statute) 

must serve the notice of termination in 

writing on a grantee or the grantee’s 

successor–in–title not less than two or 

more than ten years before the effective 

date, in a form and manner prescribed 

by regulation.1

A copy of the notice of termination 

must be recorded with the Copyright 

Office before the effective date of 

termination. 17 U.S.C. 304(c)(4)(A); 

304(d)(1); 203(a)(4)(A). (Emphasis 

added.) The particulars of the 

recordation process are prescribed by 

regulation. In short, the copy must be 

legible and must include the following 

elements: 1) either actual signatures or 

reproductions of signatures 2) a 

statement setting forth the date the 

notice was served 3) an indication of the 

manner of service and 4) submission of 

the appropriate filing fee. 37 CFR 

201.4(c)(3); 37 CFR 201.10(f). 

A discussion of the amendments 

follows. 

DISCUSSION OF PROPOSED 

AMENDMENTS 

Timeliness of Notices of Termination 

The Copyright Office cannot accept a 

notice of termination that is untimely 

because, under the law, lateness is a 

fatal mistake. (By contrast, see 37 CFR 

201.10(e) for examples of forgivable, 

harmless errors.) Thus, before the 

Copyright Office records a notice, it 

reviews for timeliness. Specifically, it 

confirms that the notice has been served 

within the relevant statutory time frame 

(as derived from the facts stated in the 

notice), and has been received by the 

Office prior to the stated effective date 

of termination. 

In practice, if in the judgment of the 

Office the document is untimely, the 

Office will take one of two actions. If the 

notice is premature, the Office will 

return it with an explanation, so that the 

serving party may resubmit the notice to 

the Office at a later date (and, as 

necessary, resubmit the notice to the 

party being served). On the other hand, 

if the document is tardy, the Office will 

offer only to record and index the 

document according to its general 

recordation practices, as a ‘‘document 

pertaining to copyright.’’ 17 U.S.C. 

205(a); 37 CFR 201.4(a)(2). It will not 

accept the document as a ‘‘notice of 

termination,’’ meaning that it will not be 

specially indexed as such. Whether 

such general recordation by the 

Copyright Office will be sufficient in 

any particular instance to effect 

termination as a matter of law is an 

issue that only the courts may resolve. 

Notwithstanding the objection 

expressed by AFTRA with respect to 

amendment one, the Office’s practice is 

consistent with the statute. Moreover, 

since the amendment restates the 

longstanding practice of the Office (i.e. 

it does not introduce a new practice), 

the Office maintains that the 

amendment is merely educative, and 

may prove helpful to interested parties 

who are looking for guidance. 

Recordation as Distinguished from 

Legal Sufficiency 

Under amendment two, the Office 

states a truism: the fact that the Office 

has accepted a document and recorded 

it as a notice of termination does not 

mean, necessarily, that the notice is 

sufficient to effect termination under the 

law. As proposed in the Notice of 

Proposed Rulemaking, the following 

sentence would have been introduced at 

the top of the paragraph: ‘‘The mere fact 

that a notice of termination has been 

recorded does not mean that it is legally 

sufficient.’’ The remainder of the 

paragraph would have followed and 

remained unchanged: ‘‘Recordation of a 

notice of termination by the Copyright 

Office is without prejudice to any party 

claiming that the legal and formal 

requirements for issuing a valid notice 

have not been met.’’ 

On this issue, the Office does not find 

the stated concerns of the commentators 

to be entirely plausible. Recordation is 

a required act under the law but, once 

completed, it carries no legal 

presumption that termination has been 

properly effected. If authors or their 

representatives believe otherwise, it is 

all the more important that this fact be 

clearly and accurately stated. The reality 

is that the Office, aside from its review 

for timeliness (discussed above), does 

not confirm the validity of the alleged 

facts that are reported in each notice. To 

do so would be an impossible exercise. 

This means that the Office may accept 

and record a notice of termination even 

though any number of elements may 

ultimately prove to be wrongly stated 

and invalid under the law, from the 

named authors, to the designation of 

beneficiaries, to the date or 

characterization of the grant. In 

instances where termination has not 

been perfected in the first place, 

recordation of the notice is of no 

consequence. The proposed amendment 

would not have changed this result –– 

– only confirmed it for clarity’s sake. 

Nevertheless, the Office is not 

wedded to the particular formulation of 

the point as originally proposed. In his 

comments, Mr. Ballard objected, in 

particular, to use of the phrase ‘‘mere 

fact,’’ which he saw as ‘‘loaded 

language’’ that would, in practice, 

undermine the termination process by 

favoring grantees over authors. In 

response, the Office has removed ‘‘mere 

fact’’ and constructed a new 

formulation, which in part repeats the 

operative language of the statute. It 

reads as follows: ‘‘A copy of the notice 

of termination shall be recorded in the 

Copyright Office before the effective 

date of termination, as a condition to its 

taking effect. However, the fact that the 

Office has recorded the notice does not 

mean that it is otherwise sufficient 

under the law.’’ The existing sentence 

will follow: ‘‘Recordation of a notice of 

termination by the Copyright Office is 

without prejudice to any party claiming 

that the legal and formal requirements 

for issuing a valid notice have not been 

met.’’ 

Legibility of Notices of Termination and 

Other Documents Pertaining to 

Copyright 

Amendment three is relatively minor, 

but nonetheless underscores the mission 

of the Copyright Office as an office of 

public record. It updates the legibility 

requirement by replacing the reference 

to ‘‘microform copies’’ with a broader, 

more flexible reference to technology. 

As revised, a document must be ‘‘legible 

and capable of being imaged or 

otherwise reproduced in legible copies 

by the technology employed by the 

Office at the time of submission.’’ 

(Emphasis added.) The Office received 

no objections to this revision. 

Fee Requirements for Notices of 

Termination 

With respect to fees, it is the 

Copyright Office’ experience that parties 

who submit notices of termination for 

recordation sometimes miscalculate the 

amount due, especially where grants of 

rights in multiple works are being 


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12556 Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Rules and Regulations 

terminated by virtue of one document. 

Amendment four adds the notice of 

termination as an express example in 

the schedule of fees under section 

201.3(c)(16), specifying that the basic 

fee for recordation of a notice of 

termination containing a single title is 

$95, and the fee for recordation of a 

notice of termination containing more 

than one title is an additional $25 per 

group of 10 titles. The Office received 

no objections to this revision. 

Mailing Address for Notices of 

Termination 

Finally, because notices of 

termination are time–sensitive, a delay 

in processing may have serious 

consequences. Amendment five 

officially activates the special post office 

box at the Copyright Office, from which 

notices of termination can more easily 

be sorted and routed for recordation. 

This revision also deletes the address 

for the now–defunct Copyright 

Arbitration Royalty Panel (CARP). See 

72 FR 45071 (August 10, 2007). The 

Office received no objections to this 

revision. 

List of Subjects in 37 CFR Part 201 

Copyright. 

Final Regulations 

For the reasons set forth above, the 

Copyright Office amends part 201 of 

title 37 of the Code of Federal 

Regulations 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.Section 201.1 is amended by 

revising paragraph (b)(2) to read as 

follows: 

§ 201.1 Communication with the 

Copyright Office. 

* * * * * 

(b)* * * 

(2)Notices of Termination. Notices of 

termination submitted for recordation 

should be mailed to Copyright Office, 

Notices of Termination, P.O. Box 71537, 

Washington, DC 20024–1537. 

§ 201.3 [Amended] 

■ 3.Amend § 201.3(c)(16) by removing 

the phrase, ‘‘Recordation of document, 

including a Notice of Intent to Enforce 

(NIE) (single title),’’ and adding in its 

place the phrase ‘‘Recordation of 

document (single title), e.g. a Notice of 

Termination or a Notice of Intent to 

Enforce (NIE)’’. 

■ 4.Amend § 201.4 by revising 

paragraph (c)(3) to read as follows: 

§ 201.4 Recordation of transfers and 

certain other documents. 

* * * * * 

(c)* * * 

(3)To be recordable, the document 

must be legible and capable of being 

imaged or otherwise reproduced in 

legible copies by the technology 

employed by the Office at the time of 

submission. 

* * * * * 

■ 5. 

follows: 

a. By adding paragraph (f)(1)(iii); 

b. By redesignating paragraph (f)(4) as 

(f)(5); 

c. By adding a new paragraph (f)(4); 

d. By revising redesignated paragraph 

(f)(5); and 

e. By adding paragraph (f) (6). 

The revisions and additions to 

§ 201.10 read as follows: 

§ 201.10 Notices of termination of 

transfers and licenses. 

* * * * * 

(f)* * * 

(1)* * * 

(iii)The copy submitted for 

recordation must be legible per the 

requirements of § 201.4(c)(3). 

* * * * * 

(4)Notwithstanding anything to the 

contrary in this section, the Copyright 

Office reserves the right to refuse 

recordation of a notice of termination if, 

in the judgment of the Copyright Office, 

such notice of termination is untimely. 

If a document is submitted as a notice 

of termination after the statutory 

deadline has expired, the Office will 

offer to record the document as a 

‘‘document pertaining to copyright’’ 

pursuant to § 201.4(c)(3), but the Office 

will not index the document as a notice 

of termination. Whether a document so 

recorded is sufficient in any instance to 

effect termination as a matter of law 

shall be determined by a court of 

competent jurisdiction. 

(5)A copy of the notice of termination 

shall be recorded in the Copyright 

Office before the effective date of 

termination, as a condition to its taking 

effect. However, the fact that the Office 

has recorded the notice does not mean 

that it is otherwise sufficient under the 

law. Recordation of a notice of 

termination by the Copyright Office is 

without prejudice to any party claiming 

that the legal and formal requirements 

for issuing a valid notice have not been 

met. 

(6)Notices of termination should be 

submitted to the address specified in 

§ 201.1(b)(2). 

Dated: March 16, 2009 

Marybeth Peters, 

Register of Copyrights. 

Approved by: 

James H. Billington, 

The Librarian of Congress. 

[FR Doc. E9–6649 Filed 3–24–09; 8:45 am] 

BILLING CODE 1410–30–S 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2009–0058; FRL–8780–2] 

Approval and Promulgation of Air 

Quality Implementation Plan; 

Maryland; Reasonably Available 

Control Technology Requirements for 

Volatile Organic Compounds 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking final action to 

fully approve revisions to the Maryland 

State Implementation Plan (SIP). The 

revisions pertain to Maryland’s major 

source volatile organic compound 

(VOC) reasonable available control 

technology (RACT) regulation. EPA is 

converting the conditional limited 

approval status of Maryland’s VOC 

RACT regulations to a full approval 

because EPA has approved all of the 

case-by-case RACT determinations 

submitted by Maryland pursuant to the 

generic provisions of its VOC RACT 

regulation as well as all of the RACT 

requirements for categories of VOC 

sources submitted by Maryland in 

accordance with the requirements of the 

Clean Air Act (CAA). 

DATES: This rule is effective on May 26, 

2009 without further notice, unless EPA 

receives adverse written comment by 

April 24, 2009. If EPA receives such 

comments, it will publish a timely 

withdrawal of the direct final rule in the 

Federal Register and inform the public 

that the rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2009–0058 by one of the 

following methods: 

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

the on-line instructions for submitting 

comments. 

B. E-mail: fernandez.cristina@epa.gov. 

C. Mail: EPA–R03–OAR–2009–0058, 

Cristina Fernandez, Chief, Air Quality 

Planning Branch, Mail code 3AP21, U.S. 

Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 


sroberts on PROD1PC70 with RULES