[Federal Register Volume 87, Number 78 (Friday, April 22, 2022)]
[Rules and Regulations]
[Pages 24056-24058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08654]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Parts 201 and 221

[Docket No. 2021-2]


Small Claims Expedited Registration Procedures: Clarification

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Final rule.

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SUMMARY: The U.S. Copyright Office is amending its regulations to 
clarify the rules governing the expedited registration option under the 
Copyright Alternative in Small-Claims Enforcement Act of 2020. The 
amendment clarifies that when a Copyright Claims Board proceeding 
cannot continue because a registration is still pending, the Board may 
hold proceedings in abeyance at any point before a final determination 
is issued. The rule also describes the process for the Board to receive 
registration certificates when they are issued while a proceeding is 
pending, allows parties to request expedited registration before a 
proceeding becomes active, and corrects non-substantive typographical 
errors.

DATES: Effective April 22, 2022.

[[Page 24057]]


FOR FURTHER INFORMATION CONTACT: Megan Efthimiadis, Assistant to the 
General Counsel, by email at <a href="/cdn-cgi/l/email-protection#3c51595a487c5f534c454e555b5448125b534a"><span class="__cf_email__" data-cfemail="c0ada5a6b480a3afb0b9b2a9a7a8b4eea7afb6">[email protected]</span></a>, or by telephone at 
202-707-8350.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Copyright Alternative in Small-Claims Enforcement (``CASE'') 
Act of 2020 \1\ directs the Copyright Office to establish the Copyright 
Claims Board (``CCB'' or ``Board''), a voluntary tribunal within the 
Office comprised of three Copyright Claims Officers who have the 
authority to render determinations on certain copyright claims for 
economic recoveries within the statutory limit. The Office issued a 
notification of inquiry (``NOI'') and subsequent notices of proposed 
rulemaking (``NPRM'') to describe the CASE Act's legislative background 
and regulatory scope and to ask for public input on various topics.\2\ 
One NPRM addressed ``regulations allowing the Copyright Office to make 
a decision, on an expedited basis, to issue or deny copyright 
registration for an unregistered work that is at issue before the 
Board.'' \3\
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    \1\ Public Law 116-260, sec. 212, 134 Stat. 1182, 2176 (2020).
    \2\ 86 FR 16156, 16161 (Mar. 26, 2021).
    \3\ 86 FR 21990, 21991 (quoting 17 U.S.C. 1505(d)).
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    In August 2021, the Librarian of Congress, after consulting with 
the Register of Copyrights, issued a final rule promulgating 
regulations to govern the expedited registration process.\4\ The final 
rule contained the following language: ``[i]f the proceeding cannot 
continue because of a pending registration, the Copyright Claims Board 
shall hold proceedings in abeyance until the claimant or 
counterclaimant provides the Copyright Claims Board with the 
certificate of registration or the registration number on the 
certificate of registration or certificate preview.'' \5\ The final 
rule also only allowed a party to initiate the expedited registration 
process once ``the proceeding has become active.'' \6\
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    \4\ 86 FR 46119 (Aug. 18, 2021).
    \5\ Id. at 46123 (codified at 37 CFR 221.1(b)).
    \6\ Id. (codified at 37 CFR 221.1(b)).
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II. Final Rule

    The Board asked the Office to clarify two points regarding the 
regulations. First, the Board asked to clarify that neither the 
regulations nor the CASE Act require that a CCB proceeding must be held 
in abeyance immediately at the point the Board discovers that the claim 
concerns a work with a pending registration. The Office had promulgated 
a rule reflecting that the CASE Act allows for a proceeding to be held 
in abeyance where ``the proceeding may not proceed further because a 
registration certificate for the work is pending.'' \7\ The CASE Act 
also states that ``if the proceeding is held in abeyance for more than 
1 year, the Copyright Claims Board may, upon providing written notice 
to the parties to the proceeding, and 30 days to the parties to respond 
to the notice, dismiss the proceeding without prejudice'' and that the 
Board cannot issue a final determination for a claim involving a work 
that has been denied registration.\8\ The CASE Act does not offer 
additional guidance on when a proceeding may not proceed further due to 
a pending registration certificate.
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    \7\ 17 U.S.C. 1505(b)(2); 86 FR 46119, 46123 (codified at 37 CFR 
221.1(b)).
    \8\ Id. at 1505(b)(2)-(3).
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    Where a registration application is pending for a work at issue 
before the Board, the Board has the authority to hold the proceeding in 
abeyance at any point where it believes the pendency means that the 
proceeding should not proceed further. If a work's eligibility for 
copyright registration is not at issue, the Board may not have any 
reason to delay the proceeding while the Copyright Office considers the 
application. In other circumstances, the Board may decide to halt the 
proceedings until after the Copyright Office makes a registration 
decision. The amended regulations reflect that it is within the Board's 
discretion, up to the issuance of its final determination, to determine 
whether and when a proceeding may not proceed further due to a pending 
registration.
    Second, the Board asked the Office to clarify the procedures 
related to submitting a registration certificate and lifting the 
abeyance. The regulations state that proceedings will be held in 
abeyance due to a pending registration ``until the claimant or 
counterclaimant provides the Copyright Claims Board with the 
certificate of registration or the registration number on the 
certificate of registration or certificate preview.'' \9\ While this 
process complies with the requirement that ``the proceeding shall be 
held in abeyance pending submission of the certificate to the Copyright 
Claims Board,'' \10\ the rule did not explain that where party submits 
a registration number, and not the registration certificate, the Office 
will provide a copy of the certificate to the Board to include in the 
proceeding's record. While the Office hopes to automate this process in 
the future, parties should contact the Board when submitting the 
registration number, so the Board can notify the Office to complete the 
certificate submission process. In all circumstances, the parties to 
the proceeding will be given ``an opportunity to address the 
registration certificate'' before the Board renders a 
determination.\11\
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    \9\ 86 FR 46119, 46123 (codified at 37 CFR 221.1(b)).
    \10\ 17 U.S.C. 1505(b)(2).
    \11\ Id. at 1505(b)(1)(B).
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    The Board also suggested that the Office allow a claimant or 
counterclaimant to request expedited registration before a proceeding 
becomes active, with the Board's permission. While the Office's NPRM 
stated that a rule that only allowed a claimant or counterclaimant to 
request expedited registration after a proceeding becomes active would 
``ensure that registration applicants do not invoke the CCB to receive 
special handling treatment at a discounted rate when not genuinely 
intending to pursue their claim through the CCB,'' \12\ at this point 
the Office agrees that the Board should have the authority to allow a 
claimant or counterclaimant with a pending application to request 
expedited registration prior to a proceeding becoming active. In 
particular, the amendment will allow claimants or counterclaimants to 
receive an earlier registration decision where copyrightability is 
unclear. The Office is implementing the Board's suggestion in the final 
rule, but will revisit this rule if the aforementioned concerns 
materialize.
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    \12\ 86 FR 21990, 21992.
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    Finally, while the final rule clearly stated that an expedited 
registration request applied to a ``registration application,'' the 
language describing the fee stated that it applied to ``each request'' 
without noting that this specifically referred to an application 
request.\13\ This final rule clarifies that language and also removes 
minor typographical errors.
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    \13\ 86 FR 46119, 46122-23 (codified at 37 CFR 221.2(c)(1)).
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    These amendments constitute a change to a ``rule[ ] of agency . . . 
procedure[ ] or practice'' \14\ and do not ``alter the rights or 
interests of parties.'' \15\ Therefore, these amendments are not 
subject to the notice and comment requirements of the Administrative 
Procedure Act and are being issued as a final rule.
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    \14\ 5 U.S.C. 553(b)(A).
    \15\ JEM Broad. Co. v. F.C.C., 22 F.3d 320, 326 (D.C. Cir. 1994) 
(internal citation omitted).

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[[Page 24058]]

List of Subjects

37 CFR Part 201

    Copyright, General provisions.

37 CFR Part 221

    Copyright, Claims.

Final Regulations

    For the reasons stated in the preamble, the U.S. Copyright Office 
amends chapter II, subchapters A and B, of title 37 Code of Federal 
Regulations as follows:

SUBCHAPTER A--COPYRIGHT OFFICE AND PROCEDURES

PART 201--GENERAL PROVISIONS

0
1. The authority citation for part 201 continues to read as follows:

    Authority:  17 U.S.C. 702.
    Section 201.10 also issued under 17 U.S.C. 304.


0
2. In Sec.  201.3, revise paragraph (d)(8) to read as follows:


Sec.  201.3  Fees for registration, recordation, and related services, 
special services, and services performed by the Licensing Section and 
the Copyright Claims Board.

* * * * *
    (d) * * *

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(8) Small claims expedited registration fee per registration          50
 application request.........................................
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* * * * *

PART 221--REGISTRATION

0
3. The authority citation for part 221 continues to read as follows:

    Authority: 17 U.S.C. 702, 1510.


0
4. In Sec.  221.1, revise paragraph (b) to read as follows:


Sec.  221.1  Registration requirement.

* * * * *
    (b) For a work that has not yet been registered, a claimant or 
counterclaimant who has a pending application to register the work must 
indicate on its claim or counterclaim notice that the work is pending 
registration and must include the work's service request (SR) number 
that was assigned to the copyright registration claim. If the Copyright 
Claims Board, in its discretion, at any time determines that the 
proceeding may not proceed forward because of a pending registration, 
the Copyright Claims Board shall issue an order holding the proceeding 
in abeyance until it is provided with the certificate of registration 
or the registration number on the certificate of registration or 
certificate preview. Under this provision, the Copyright Claims Board 
can decide to hold the proceeding in abeyance at any point in the 
proceeding, but must dismiss the proceeding without prejudice if it is 
notified that the registration application was refused. If the 
proceeding has been held in abeyance for more than one year, the 
Copyright Claims Board may dismiss the claim or counterclaim without 
prejudice after providing thirty days' written notice to all parties to 
the proceeding.

0
5. In Sec.  221.2, revise paragraphs (b) and (e) to read as follows:


Sec.  221.2  Small claims expedited registration.

* * * * *
    (b) Initiating small claims expedited registration. The small 
claims expedited registration process can only be initiated after the 
claimant or counterclaimant has completed an application for copyright 
registration and either the Copyright Claims Board has issued an order 
holding the proceedings in abeyance pursuant to Sec.  221.1(b) and has 
granted the applicant permission to request an expedited registration 
or the proceeding has become active. To initiate the small claims 
expedited registration process, the qualifying claimant or 
counterclaimant must make a request and pay the required fee set forth 
in Sec.  201.3(d). Parties must not attempt to initiate small claims 
expedited registration by using the Copyright Office's electronic 
registration system (eCO).
* * * * *
    (e) Granted requests. If the request for expedited registration 
under this section is granted, the Office will make every attempt to 
examine the application within 10 business days after notice of the 
request is delivered by the Copyright Claims Board to the Copyright 
Office's Office of Registration Policy and Practice, although the 
Copyright Office cannot guarantee that all applications will be 
examined within that timeframe.
* * * * *

    Dated: April 15, 2022.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.

    Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2022-08654 Filed 4-21-22; 8:45 am]
BILLING CODE 1410-30-P


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