[Federal Register Volume 70, Number 207 (Thursday, October 27, 2005)]
[Rules and Regulations]
[Pages 61905-61908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21381]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 202

[Docket No. RM 2005-9]


Preregistration of Certain Unpublished Copyright Claims

AGENCY: Library of Congress, Copyright Office.

ACTION: Interim regulation.

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SUMMARY: Pursuant to the Artists' Rights and Theft Prevention Act of 
2005, the Copyright Office is publishing an interim regulation 
governing the preregistration of unpublished works that are being 
prepared for commercial distribution in classes of works that the 
Register of Copyrights has determined have had a history of pre-release 
infringement.

EFFECTIVE DATE: November 15, 2005.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
Charlotte Douglass, Principal Legal Advisor, P.O. Box 70400, 
Washington, DC 20024-0400, Telephone: (202) 707-8380. Telefax: (202) 
707-8366.

SUPPLEMENTARY INFORMATION: On April 27, 2005, President Bush signed the 
Family Entertainment and Copyright Act (``FECA''). Pub. L. No. 109-9, 
119 Stat. 218. Title I of FECA is the Artists' Rights and Theft 
Prevention Act of 2005, or ``ART Act,'' which among other things 
addresses copyright infringement of works committed prior to their 
authorized commercial distribution, or pre-release infringement. 
Section 104 directs the Copyright Office to conduct a rulemaking 
proceeding to establish a procedure for preregistration of unpublished 
works that are being prepared for commercial distribution.
    Specifically, Section 104 provides that ``Not later than 180 days 
after the date of enactment of this subsection, the Register of 
Copyrights shall issue regulations to establish procedures for 
preregistration of a work that is being prepared for commercial 
distribution and has not been published.'' 17 U.S. C. 408(f)(1). 
Preregistration is a new procedure in the Copyright Office that permits 
such an action to serve as a place-holder for limited purposes - 
notably where a copyright owner needs to sue for infringement while a 
work is still being prepared for commercial release.
    Congress also assigned the Register to determine which works are 
eligible for preregistration by directing that ``the regulations 
established under paragraph (1) shall permit preregistration for any 
work that is in a class of works that the Register determines has had a 
history of infringement prior to authorized commercial distribution.'' 
17 U.S.C. 408(f)(2). Thus, falling in one or more of the classes so 
determined by the Register is a precondition to eligibility for 
preregistration, and applications for works that do not appear to fall 
within these classes should not be entertained.
    On July 22, 2005, the Register of Copyrights initiated this 
rulemaking

[[Page 61906]]

proceeding pursuant to the ART Act's Section 408(f)(2) with publication 
of a Notice of Proposed Rulemaking (``NOPR''). 70 FR 42286. The 
Copyright Office received ten initial comments and five reply comments 
related to proposals of one or more classes of works or to general 
preregistration procedure. The Office also received a large number of 
comments in response to a Supplemental Notice of Proposed Rulemaking 
published August 4, 2005, which sought information relating to browser 
compatibility for those expected to file the electronic preregistration 
form. The Office made this inquiry after learning that persons 
attempting to use the Office's new online preregistration system, which 
was still in development, may have difficulties if they used web 
browsers other then Microsoft Internet Explorer.
    In order to preregister, applicants must use the Office's online 
preregistration system, which will be accessible from the Copyright 
Office's home page at http://www.copyright.gov. While the Office is 
attempting to address browser compatibility issues, initially some 
applicants may experience difficulties if they are using browsers other 
than Internet Explorer. For applicants who are unable to use the online 
preregistration system, information will be available on the Copyright 
Office website on how to preregister their works.
    In order to comply with the ART Act's requirement that regulations 
to establish procedures for preregistration be issued by October 24, 
the Office is now issuing the following interim regulations. It is 
anticipated that final regulations, which will be identical or very 
similar to the interim regulations, will be published within the next 
few weeks, along with a more detailed discussion of the comments 
received in response to the notice of proposed rulemaking and of the 
Office's responses to those comments. For further information in the 
meantime, please refer to the July 22 notice of proposed rulemaking, as 
supplemented by the following brief explanation.
    The Register's determination today adopts the liberalized classes 
named and discussed below. The Register has now carefully reviewed the 
record in this rulemaking proceeding to determine the classes of works 
that have had a history of infringement prior to authorized commercial 
distribution. Based on that review of the comments, it appears that the 
case has been made for eligibility for preregistration of the following 
classes of works upon their fulfillment of the conditions specified in 
37 CFR 202.16:
    (i) Motion pictures;
    (ii) Sound recordings;
    (iii) Musical compositions;
    (iv) Literary works being prepared for publication in book form;
    (v) Computer programs (including videogames); and
    (vi) Advertising or marketing photographs.
    Many copyright owners urged that much or all of the information 
provided on applications for preregistration be maintained as 
confidential records by the Copyright Office. The Register cannot 
accept the proposition that the public should be denied access to the 
preregistration records. As an office of public record administering a 
system of registration and recordation the purpose of which is to 
provide information regarding copyright ownership to the public, the 
Copyright Office is not disposed to receive and maintain private 
information. The Office is subject to the Freedom of Information Act 
(``FOIA''), and it may or may not be able to refuse release of records 
based on applicable FOIA exceptions. To preclude accessibility to 
information related to a preregistration is inconsistent with the very 
concept of preregistration and registration systems.
    The Office does not believe that the alleged risks of making such 
information public pose serious danger to copyright owners. The 
information required to preregister a work need not be detailed and 
need not include confidential information. To the extent that a title 
is demanded, it is sufficient to provide a ``working title''; moreover, 
the risk of cybersquatting can easily be mitigated if the copyright 
owner obtains the applicable domain name prior to or simultaneously 
with preregistration. Information such as anticipated release dates is 
not immutable; it should be understood that when a preregistration made 
at an early stage in a work's preparation states an anticipated date of 
release, that date is at best a prediction and is hardly a binding 
commitment.
    Accordingly, the preregistration record will be a public record, 
and information from the preregistration records will be available on 
the Copyright Office Web site.\1\
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    \1\ Due to the ongoing conversion of the online copyright 
catalog to a Voyager database, preregistration records will probably 
not be available online until sometime in December.
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    The Office has abandoned its proposal that, in order to be eligible 
for preregistration, a work must already be subject to a contract for 
distribution of the work with an established distributor of works. 
However, a person preregistering a work must certify, under penalty of 
law, that the work is in fact being prepared for commercial 
distribution and that the applicant has a reasonable expectation that 
the work will be commercially distributed to the public.
    Commenters also asserted that distribution is already extensively 
occurring online, and in some genres, exclusively so. Therefore, the 
Office will not limit the coverage of this regulation to work being 
prepared for commercial distribution in physical format. Any class of 
work that the Register determines has had a history of pre-release 
infringement may be preregistered without regard to whether the work is 
intended to be distributed in physical formats or is intended for 
online distribution.
    Additional information relating to preregistration may be found in 
the help pages of the Office's online preregistration system, which 
will be accessible from the Copyright Office's home page at http://www.copyright.gov. The online preregistration system, which is in its 
final stages of preparation, will go online, and preregistration will 
be available, on November 15.

List of Subjects in 37 CFR Part 202

    Claims, Copyright, Registration requirements.

Interim Regulation

0
In consideration of the foregoing, the Copyright Office issues this 
interim rule amending part 202 of 37 CFR, chapter II, in the manner set 
forth below:

PART 202 - PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

0
1. The authority citation for part 202 is revised to read as follows:


    Authority: 17 U.S.C. 408(f), 702


0
2. The heading of Part 202 is revised to read as set forth above.

0
3. A new Sec.  202.16 is added to read as follows:


Sec.  202.16  Preregistration of copyrights.

    (a) General. This section prescribes rules pertaining to the 
preregistration of copyright claims in works eligible for 
preregistration under Section 408(f) of 17 U.S.C.
    (b) Definitions. For the purposes of this section -
    (1) A work is in a class of works that the Register of Copyrights 
has determined has had a history of infringement prior to authorized 
commercial release if it falls within one of the following classes of 
works:

[[Page 61907]]

    (i) Motion pictures;
    (ii) Sound recordings;
    (iii) Musical compositions;
    (iv) Literary works being prepared for publication in book form;
    (v) Computer programs (including videogames); or
    (vi) Advertising or marketing photographs.
    (2) A work is being prepared for commercial distribution if:
    (i) The claimant, in a statement certified by the authorized 
preregistering party, has a reasonable expectation that the work will 
be commercially distributed to the public; and
    (ii) Preparation of the work has commenced and at least some 
portion of the work has been fixed in a tangible medium of expression, 
as follows:
    (A) For a motion picture, filming of the motion picture must have 
commenced;
    (B) For a sound recording, recording of the sounds must have 
commenced;
    (C) For a musical composition, at least some of the musical 
composition must have been fixed either in the form of musical notation 
or in a copy or phonorecord embodying a performance of some or all of 
the work;
    (D) For a literary work being prepared for publication in book 
form, the actual writing of the text of the work must have commenced;
    (E) For a computer program, at least some of the computer code 
(either source code or object code) must have been fixed; and
    (F) For an advertising or marketing photograph, the photograph (or, 
in the case of a group of photographs intended for simultaneous 
publication, at least one of the photographs) must have been taken.
    (3) A work eligible for preregistration is a work that is:
    (i) Unpublished;
    (ii) Being prepared for commercial distribution; and
    (iii) In a class of works that the Register of Copyrights has 
determined has had a history of infringement prior to authorized 
commercial release.
    (c) Preregistration. (1) General. A work eligible for 
preregistration may be preregistered by submitting an application and 
fee to the Copyright Office pursuant to the requirements set forth in 
this section.
    (2) Works excluded. Works that are not copyrightable subject matter 
under title 17 of the U.S. Code may not be preregistered in the 
Copyright Office.
    (3) Application form. An application for preregistration is made 
using Electronic Form PRE. The application must be submitted 
electronically on the Copyright Office website at: http://www.copyright.gov.
    (4) Preregistration as a single work. For the purpose of 
preregistration on a single application and upon payment of a single 
preregistration fee, all copyrightable elements that are otherwise 
recognizable as self-contained works, that are to be included and first 
published in a single unit of publication, and in which the copyright 
claimant is the same, shall be considered a single work eligible for 
preregistration.
    (5) Fee. (i) Amount. The filing fee for preregistration is $100.
    (ii) Method of payment. (A) Copyright Office deposit account. The 
Copyright Office maintains a system of Deposit Accounts for the 
convenience of those who frequently use its services and for those who 
file applications electronically. The system allows an individual or 
firm to establish a Deposit Account in the Copyright Office and to make 
advance deposits in that account. Deposit Account holders can charge 
preregistration fees against the balance in their accounts instead of 
using credit cards for each request of service. For information on 
Deposit Accounts, please download a copy of Circular 5, ``How to Open 
and Maintain a Deposit Account in the Copyright Office,'' or write the 
Register of Copyrights, Copyright Office, Library of Congress, 
Washington, D.C. 20559.
    (B) Credit cards, debit cards and electronic funds transfer. The 
online preregistration filing system will provide options for payment 
by means of credit or debit cards and by means of electronic funds 
transfers. Applicants will be redirected to the Department of 
Treasury's Pay.gov website to make payments with credit or debit cards, 
or directly from their bank accounts by means of ACH debit 
transactions.
    (C) No refunds. The preregistration filing fee is not refundable.
    (6) Description. No deposit of the work being preregistered should 
be submitted with an application for preregistration. The 
preregistration applicant should submit a detailed description, of not 
more than 2,000 characters (approximately 330 words), of the work as 
part of the application. The description should be based on information 
available at the time of the application sufficient to reasonably 
identify the work. Generally, the Copyright Office will not review 
descriptions for adequacy, but in an action for infringement of a 
preregistered work, the court may evaluate the adequacy of the 
description to determine whether the preregistration actually describes 
the work that is alleged to be infringed, taking into account the 
information available to the applicant at the time of preregistration 
and taking into account the legitimate interest of the applicant in 
protecting confidential information.
    (i) For motion pictures, such a description should include the 
following information to the extent known at the time of filing: the 
subject matter, a summary or outline, the director, the primary actors, 
the principal location of filming, and any other information that would 
assist in identifying the particular work being preregistered.
    (ii) For sound recordings, the identifying description should 
include the following information to the extent known at the time of 
filing: the subject matter of the work or works recorded, the performer 
or performing group, the genre of the work recorded (e.g., classical, 
pop, musical comedy, soft rock, heavy metal, gospel, rap, hip-hop, 
blues, jazz), the titles of the musical compositions being recorded, 
the principal recording location, the composer(s) of the recorded 
musical compositions embodied on the sound recording, and any other 
information that would assist in identifying the particular work being 
preregistered.
    (iii) For musical compositions, the identifying description should 
include the following information to the extent known at the time of 
filing: the subject matter of the lyrics, if any, the genre of the work 
(for example, classical, pop, musical comedy, soft rock, heavy metal, 
gospel, rap, hip-hop, blues, jazz), the performer, principal recording 
location, record label, motion picture, or other information relating 
to any sound recordings or motion pictures that are being prepared for 
commercial distribution and will include the musical composition, and 
any other detail or characteristic that may assist in identifying the 
particular musical composition.
    (iv) For literary works in book form, the identifying description 
should include to the extent known at the time of filing: the genre of 
the book, e.g., biography, novel, history, etc., and should include a 
brief summary of the work including, the subject matter (e.g., a 
biography of President Bush, a history of the war in Iraq, a fantasy 
novel); a description (where applicable) of the plot, primary 
characters, events, or other key elements of the content of the work; 
and any other salient characteristics of the book, e.g., whether it is 
a later edition or revision of a previous work, as well as any other 
detail which may assist in identifying the literary work in book form.

[[Page 61908]]

    (v) For computer programs (including videogames), the identifying 
description should include to the extent known at the time of filing, 
the nature, purpose and function of the computer program, including the 
programming language in which it is written, any particular 
organization or structure in which the program has been created; the 
form in which it is expected to be published, e.g. as an online-only 
product; whether there have been previous versions (and identification 
of such previous versions); the identities of persons involved in the 
creation of the computer program; and, if the work is a videogame, also 
describe the subject matter of the videogame and the overall object, 
goal or purpose of the game, its characters, if any, and the general 
setting and surrounding found in the game.
    (vi) For advertising or marketing photographs, the description 
should include the subject matter depicted in the photograph or 
photographs, including information such as the particular product, 
event, public figure, or other item or occurrence which the photograph 
is intended to advertise or market. To the extent possible and 
applicable, the description for photographs should give additional 
details which will assist in identifying the particular photographs, 
such as the party for whom such advertising photographs are taken; the 
approximate time periods during which the photographs are taken; the 
approximate number of photos which may be included in the grouping; any 
events associated with the photographs; and the location and physical 
setting or surrounding depicted in the photographs. The description may 
also explain the general presentation, e.g., the lighting, background 
scenery, positioning of elements of the subject matter as it is seen in 
the photographs, and should provide any locations and events, if 
applicable, associated with the photographs.
    (7) Review of preregistration information. The Copyright Office 
will conduct a limited review of applications for preregistration, in 
order to ascertain whether the application describes a work that is in 
a class of works that the Register of Copyrights has determined has had 
a history of infringement prior to authorized commercial release. 
However, a work will not be preregistered unless an applicant has 
provided all of the information requested on the application and has 
certified that all of the information provided on the application is 
correct to the best of the applicant's knowledge.
    (8) Certification. The person submitting an application for 
preregistration must certify on the application that he or she is the 
author, copyright claimant, or owner of exclusive rights, or the 
authorized agent of the author, copyright claimant, or owner of 
exclusive rights, of the work submitted for this preregistration; that 
the information given in this application is correct to the best of his 
or her knowledge; that the work is being prepared for commercial 
distribution; and that he or she has a reasonable expectation that the 
work will be commercially distributed to the public.
    (9) Effective date of preregistration. The effective date of a 
preregistration is the day on which an application and fee for 
preregistration of a work, which the Copyright Office later notifies 
the claimant has been preregistered or which a court of competent 
jurisdiction has concluded was acceptable for preregistration, have 
been received in the Copyright Office.
    (10) Notification of preregistration. Upon completion of the 
preregistration, the Copyright Office will provide the claimant 
official notification by email of the preregistration.
    (11) Certification of preregistation. A certified copy of the 
official notification may be obtained in physical form from the 
Certification and Documents Section of the Information and Reference 
Division at the address stated in Sec.  201.1(a)(3) of this chapter.
    (12) Public record of preregistration. The preregistration record 
will also be available to the public on the Copyright Office website, 
http://www.copyright.gov.
    (13) Effect of preregistration. Preregistration of a work offers 
certain advantages to a copyright owner pursuant to 17 U.S.C. 408(f), 
411 and 412. However, preregistration of a work does not constitute 
prima facie evidence of the validity of the copyright or of the facts 
stated in the application for preregistration or in the preregistration 
record. The fact that a work has been preregistered does not create any 
presumption that the Copyright Office will register the work upon 
submission of an application for registration.
    (14) Petition for recognition of a new class of works. At any time 
an interested party may petition the Register of Copyrights for a 
determination as to whether a particular class of works has had a 
history of copyright infringement prior to authorized release that 
would justify inclusion of that class of works among the classes of 
works eligible for preregistration.

    Dated: October 19, 2005
Marybeth Peters,
Register of Copyrights.
    Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 05-21381 Filed 10-26-05; 8:45 am]
BILLING CODE 1410-30-S