[Federal Register Volume 76, Number 108 (Monday, June 6, 2011)]
[Rules and Regulations]
[Pages 32316-32321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13845]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2010-5]
Gap in Termination Provisions
AGENCY: Copyright Office, Library of Congress.
ACTION: Final rule.
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SUMMARY: The Copyright Office is amending its regulations governing
notices of termination of certain grants of transfers and licenses of
copyright under section 203 of the Copyright Act. The amendments are
intended to clarify the recordation practices of the Copyright Office
regarding the content of certain notices of termination, and the
circumstances under which such notices will be accepted by the Office.
In particular, they clarify that the Copyright Office will record
section 203 notices of termination of grants for works created after
1977 even when the agreement to make a grant was made before 1978.
DATES: Effective Date: June 6, 2011.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, P.O.
Box 70400, Washington, DC 20024. Telephone: (202) 707-8380. Telefax:
(202) 707-8366. All prior Federal Register notices and public comments
in this docket and a related inquiry are available at http://www.copyright.gov/docs/termination.
SUPPLEMENTARY INFORMATION:
Background
The Copyright Act gives authors (and some heirs, beneficiaries and
representatives who are specified by statute) the right to terminate
certain grants of transfers or licenses within the time frames set
forth in the statute and subject to the execution of certain conditions
precedent. Termination rights (also referred to as ``recapture
rights'') are equitable accommodations under the law. They allow
authors or their heirs a second opportunity to share in the economic
success of their works. These termination rights are codified in
sections 203, 304(c), 304(d) and 203 of Title 17 of the United States
Code. They do not apply to copyrights in works made for hire or grants
made by will. Sections 304(c) and 304(d) establish termination rights
for works that had subsisting copyrights on January 1, 1978, the
effective date of the 1976 Copyright Act. Section 203, which is the
subject of this rulemaking, establishes termination rights for works
subject to grants of transfers or licenses made on or after the
effective date of the 1976 Copyright Act, but only to the extent they
were executed by the author.
The current rulemaking addresses a narrow fact pattern that was
also the subject of a related notice of inquiry published March 29,
2010. (75 FR 15390). Through the notice of inquiry, the Office sought
comments as to whether or how the termination provisions apply in
circumstances where an author agreed to make a grant prior to January
1, 1978, but the work in question was created on or after January 1,
1978--circumstances raised by some authors and songwriters and their
representatives in discussions with the Copyright Office and some
congressional offices. Such grants are sometimes called ``Gap Grants''
in light of a perception that in creating the section 304 termination
process and the section 203 termination process, as described above,
Congress may have created a ``gap'' by failing to address circumstances
in which authors (or would-be authors) agreed to make grants
prospectively, before January 1, 1978, for works they did not create
until on or after that date.
In response to the Notice of Inquiry seeking comments on the so-
called ``gap,'' the Copyright Office received sixteen initial comments
and nine reply comments. These comments are available online on the
Copyright Office Web site, at http://www.copyright.gov/docs/termination/. Most concluded that the termination right provided in
section 203 of the Copyright Act is applicable to Gap Grants as
currently codified, reasoning that a grant is not fully executed under
the law until the relevant work has been created. Multiple commenters
expanded on this point, observing, in turn, that there can be no
author, no copyright interest and no grant of copyright under Title 17
until there is first a work of authorship. One comment, however, urged
caution, questioning whether, at least in the case of written grants,
Congress intended the date of execution for the purposes of section 203
to mean the date the grant was signed. This view could not apply to
grants made orally, but it would mean section 203 cannot apply to any
fact patterns in which grants are executed in writing and signed prior
to January 1, 1978.
Based on the comments received and its own analysis, the Copyright
Office concluded that the better interpretation of the law is that Gap
Grants are terminable under section 203, as currently codified, because
as a matter of copyright law, a transfer that predates the existence of
the copyrighted work cannot be effective (and therefore cannot be
``executed'') until the work of authorship (and the copyright) come
into existence. In arriving at this conclusion, the Copyright Office
looked at the plain meaning of Title 17, including section 203, as well
as the legislative history of the termination provisions. It also
considered transfer of copyrights and renewal rights under common law,
prior to enactment of the termination provisions. See Analysis of Gap
Grants Under the Termination
[[Page 32317]]
Provisions of Title 17 (December 7, 2010), available at http://www.copyright.gov/reports/gap-grant%20analysis.pdf (hereinafter the
``December Analysis'').
In the December Analysis, the Copyright Office also concluded that
legislation to clarify the statute would be beneficial, not only to
better achieve the policy objectives for book authors, songwriters and
other intended beneficiaries of the provision, but in order to provide
confidence and certainty for publishers and other grantees with respect
to copyright title, transfers and licensing transactions in the
marketplace. Id. And the Office acknowledged that its own recordation
practices required clarification, so that stakeholders would know
whether and how to timely record termination notices pertaining to gap
grants. Id.
The Office's recordation practices are the focus of the current
rulemaking, initiated in a notice of proposed rulemaking published in
November. 75 FR 72771 (November 26, 2010). In the notice of proposed
rulemaking, the Office stated its current practices, which permit the
recordation of a notice of termination under section 203 when the
notice states that the grant was executed on a specified date that is
on or after January 1, 1978. It observed that a person serving and
submitting a notice of termination based on the rationale described
above would be justified in including in the notice, as the date of
execution of the grant, the date that the work was created, and that
for purposes of clearly identifying the grant being terminated, it may
be useful (in the case of written grants) also to state the date the
grant was signed. Such recordation by the Office would be without
prejudice as to how a court might ultimately rule on whether the
document is a notice of termination within the scope of section 203.
See 37 CFR 201.10(f)(5).
The notice of proposed rulemaking sought comment on amendments to
Copyright Office regulations that would clarify that, consistent with
existing recordation practices, the Office reserves the right to refuse
a document for recordation as a section 203 notice of termination if
the date of execution of the grant, as reflected in the document
submitted as a notice of termination, falls before January 1, 1978. The
notice proposed an amendment to the existing regulations on notices of
termination that would clarify certain circumstances under which, based
on certain procedural failures drawn from the clear language of the
Copyright Act, the Office will refuse to index as notices of
termination documents submitted under section 203. These circumstances
included a recital in a notice of termination of a date of execution of
the grant that falls before January 1, 1978 (as discussed above), an
effective date of termination that does not fall within the allowed
statutory period (17 U.S.C. 203(a)(3)), improperly timed service of the
notice of termination (17 U.S.C. 203(a)(4)(A)), or submission of
documents for recordation as notice of termination on or after the
effective date of termination (17 U.S.C. 203(a)(4)(A)).
Specifically, the notice of proposed rulemaking proposed to amend
Sec. 201.10(f)(4) of the Copyright Office regulations, which currently
provides that 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, by adding the
following language: ``Conditions under which a notice of termination
will be considered untimely include: The date of execution stated
therein does not fall on or after January 1, 1978, as required by
section 203(a) of title 17, United States Code; the effective date of
termination does not fall within the five-year period described in
section 203(a)(3) of title 17, United States Code; or the documents
submitted indicate that the notice of termination was served less than
two or more than ten years before the effective date of termination.''
The effect of the proposed amendment would have been that if a
notice of termination of a Gap Grant provided, as the date of execution
of the grant, a date on or after January 1, 1978, the Office would
record the notice as a notice of termination under section 203. The
Office would not question that date even if it knew that an agreement
to grant the transfer or license was signed before January 1, 1978,
since there would be legitimate grounds to conclude that the grant
could not actually have been ``executed'' until the work that was the
subject of the grant had been created.
Comments
The Office received seven comments in response to the notice of
proposed rulemaking. All of the commenters expressed support for the
general proposition that the Office should record notices of
termination of Gap Grants, although not all necessarily agreed that
such notices actually meet the requirements for notices of termination
under section 203.
Most groups representing authors and performers who submitted
comments generally supported the proposed rule, although some proposed
more extensive regulation. The Future of Music Coalition characterized
the proposal as ``an appropriate compromise to facilitate the notice of
termination filing requirements for Gap Grants,'' but noted that ``this
rulemaking is not a substitute for statutory clarification.'' It noted
that under an approach that bases the date of execution of a grant upon
the date the work was created, there may be difficulties in
establishing the actual date of creation of the work and noted that an
approach that considers the date of creation to be the date of
execution would be less friendly to authors, especially when individual
contracts apply to works created piecemeal or involve the transfer of
multiple future works.
In a jointly filed comment, The Authors Guild and the Songwriters
Guild of America endorsed the Copyright Office's December Analysis as
well as the proposed regulation, but suggested a further amendment that
would affirmatively state that the Office will record notices of
termination of Gap Grants under section 203. They proposed the
following language: ``Notices of termination for works created on or
after January 1, 1978, the grants of transfers and licenses of
copyrights for which were entered into before January 1, 1978, will be
accepted under section 203.''
Attorney Casey del Casino's comment characterized the proposed
regulation as ``an important step in addressing and attempting to
correct what is clearly an oversight on the part of Congress with
respect to so-called `gap works,' '' but noted that ``the use of the
date of creation in the proposed rule change, while doctrinally sound,
may in reality be problematic'' because the date of creation of a work
is not always easy to ascertain, especially if the specific date of
creation must be recited in the notice of termination. He suggested
that the problem could be ameliorated if only the year of creation must
be provided. Alternatively, he suggested that when the date of creation
is unknown or unascertainable, it should be sufficient to provide the
date of publication, a date which is generally easier to determine.
Karyn Soroka of Soroka Music Ltd. offered a similar comment.
Attorneys Michael Perlstein, Bill Gable and Kenneth Freundlich also
expressed concern about practical difficulties likely to generate
litigation if further clarification could not be achieved through
legislation or ``best practices,'' noting that ``neither authors nor
their grantees (e.g. publishing companies) were ever on notice that
they needed to retain documents evidencing date of creation (as
[[Page 32318]]
distinguished from date of delivery, for example), and that even if
such documents may once have existed neither party often will have
preserved them.'' They therefore proposed guidelines that they
characterized as ``author-friendly, consistent with legislative and
judicial intent that authors and their heirs benefit from the
termination statutes.'' These guidelines proposed a hierarchy of five
criteria to be used to determine the date of execution of a grant,
culminating in a default rule for unpublished works with no registered
copyright and no author-provided proof of creation. In such cases,
there would be a rebuttable presumption the work was created (which
thereby executed the grant) on the statutorily fixed date of January 1,
1978.
Those representing grantees of rights also supported the Office's
proposal to amend its regulations to make clear that the Office will
record notices of termination of Gap Grants, but they sought additional
amendments that they believe would make it clearer that recordation
does not mean the notices are legally valid. In other words, they
argued that the Office should take care to articulate that its
acceptance and recordation of Gap Grants under section 203 is without
prejudice to a court ruling that Gap Grants are not terminable as a
matter of law.
For example, the Software and Information Industry Association
(SIIA) stated that the better practice would be for the Copyright
Office to leave any merits-based evaluation to the courts and suggested
that the amended regulation clarify that the Office's decision to
record such terminations has been made simply to help preserve the
filing party's rights, reserving the ultimate determination of the
issue for the courts. While acknowledging that the Office has concluded
that there are legitimate grounds to conclude that Gap Grants may be
terminated under section 203 because they could not have been
``executed'' before the works subject to the grants were actually
created, SIIA requested that the amended regulation make clear that
``there are also legitimate grounds to assert that in the case of a
grant signed (or, in the case of an oral license, agreed to) before
January 1, 1978 regarding rights in a work not created until January 1,
1978 or later, such a grant was `executed' on the date such grant was
signed and that the termination provisions of section 203 of Title 17
do not apply to any such grants''; that ``the Copyright Office was not
and is not making any merit-based evaluation of the arguments either
way''; and that the regulation ``simply would act to help preserve the
filing party's rights, reserving the ultimate determination of the
issue for the courts.'' SIIA Comment at 2.
The Recording Industry Association of America (RIAA) raised the
same point as SIAA, as well as a finer point the Office had not
previously considered. It observed that the proposed amendment would
recite the Copyright Office's right to refuse to record a notice of
termination if, in the judgment of the Office, the notice is untimely,
but also would treat the recital by an author of the date of execution
(in the notice of termination itself) as an issue relating to
timeliness of the notice. As a result, the Office's act of recording a
notice of termination of a Gap Grant could be construed as a judgment
by the Office that the particular notice is timely. Having defined the
issue of date of execution of the grant as an issue relating to
timeliness of the notice, the effect of the regulation might be to give
the Office's judgment as to timeliness in such cases greater weight
than the Office intended.
Discussion
The Copyright Office recognizes the practical concerns raised by
some commenters with respect to establishing an effective date of
execution based on the date of creation of a work. How does one recall
and prove the date of creation, especially in the absence of supporting
documentation? The task is obviously challenging, but it is not unique
to Gap Grants and it is not new. For example, authors who wish to
terminate oral agreements (grants of nonexclusive rights do not require
a signed writing) must reconstruct dates from memory or supporting
conduct or documentation. To be clear, the Copyright Office is not
suggesting that requiring authors to reconstruct precise dates decades
after the fact is an optimal policy solution; it is merely pointing out
that the challenges exist irrespective of Gap Grant scenarios. Indeed,
as noted in the December Analysis, the challenges will be ongoing for
purposes of section 203. That is, in every instance where a grant of
rights has been or will be made prospectively, whether in writing or
orally, the author will need to determine the date of execution of the
grant separately from the date the grant was initiated, in order to
secure an effective date of termination. This would seem to be a
particular problem for grants that did not or will not cover the
publication right, although this too is not entirely clear. When the
grant covers the publication right, section 203 allows for termination
during a 5-year window commencing 35 years from publication or 40 years
from the date of execution of the grant, whichever is sooner. Thus the
question: can an author perform the statutory calculation if she cannot
ascertain both a date of execution of the grant and (if the work was
published) a publication date?
The proposals of some commenters were aimed at simplifying the
practical challenges noted above and providing guidance to authors and
grantees alike for the sake of the marketplace. Consider, for example,
the suggested hierarchy of five criteria to be used to determine the
date of execution of a grant that was proposed by Mr. Perlstein, Mr.
Gable and Mr. Freundlich (including the suggestion that the date of
publication may be used as a proxy) and the year of creation solution
proposed by Mr. del Casino. While these may be useful ideas, they beg
some important questions: Does the Copyright Office have the authority
to promulgate these kinds of solutions under its rulemaking authority?
And if it does, are such regulations within the scope of the regulatory
action that was proposed in the current rulemaking?
Starting with the latter point, the current rulemaking sought
comment on a proposal to make limited procedural revisions to existing
Copyright Office regulations. These revisions would make clear that as
long as the notice of termination identified the date of execution of
the grant as a date on or after January 1, 1978, the Office would not
refuse to record it for lack of timeliness. In explaining the reasons
for the proposed regulatory amendment, the notice observed, consistent
with many comments submitted in response to the March 2010 notice of
inquiry, that ``there are legitimate grounds to assert that, in the
case of a grant signed (or, in the case of an oral license, agreed to)
before January 1, 1978 regarding rights in a work not created until
January 1, 1978 or later, such a grant cannot be `executed' until the
work exists.'' 75 FR 72772, (November 26, 2010). Therefore, ``[a]
person serving and submitting a notice of termination based on the
rationale described above would be justified in including in the
notice, as the date of execution of the grant, the date that the work
was created.'' Id. This is the rationale the Copyright Office later
found to be persuasive and documented in its December Analysis.
The Copyright Office notes that some of the alternative solutions
proposed in some of the comments submitted by representatives of
authors appear to go beyond the scope of the limited procedural rule
governing recordation practice that was proposed in this rulemaking
proceeding. Moreover, none
[[Page 32319]]
of the commenters who urged caution in response to the Office's
proposal have had an opportunity to respond to the new proposals made
in those comments. The Office concludes that to adopt a rule that goes
beyond that which was proposed in the notice of proposed rulemaking
would be beyond the scope of the current rulemaking and would require
notice and opportunity for further comment by all interested parties.
The Office does not wish to postpone the issuance of a final regulation
in the current rulemaking, but is considering publishing a new notice
of inquiry that will address the additional proposals.
The Office also has questions regarding the scope of its regulatory
authority to publish new proposals, practical solutions or alternatives
to documenting the date of execution of the grant, even in instances
when said date is elusive by reasonable standards and where many
stakeholders would welcome guidance. As a general matter, the Copyright
Office is authorized to issue regulations based upon existing law and
the statutory grant of authority to establish regulations for the
administration of the statutory functions and duties made the
responsibility of the Office, such as the administration of a
recordation program. See 17 U.S.C. 702. Moreover, the existing
regulations, as well as the final regulation adopted today, follow
Copyright Office practice with respect to the content of notices of
termination. Since the Office first issued regulations governing
notices of termination in 1977, the regulations have provided that a
notice of termination must recite the relevant date used to calculate
the period during which termination may be effected. See Final
Regulation, Termination of Transfers and Licenses Covering Extended
Renewal Term, 42 FR 45916, 45917 (September 13, 1977) (imposing
requirement, for notices of termination under section 304(c), that
notices recite the date copyright was secured because ``the period
during which termination may be effected is measured from the date
copyright was originally secured''). When the Office first proposed
regulations governing notices of termination under section 203, it
proposed that such notices include ``identification of the date of
execution of the grant being terminated'' for the same reason. Notice
of Proposed Rulemaking, Notice of Termination, 67 FR 77951, 77953
(December 20, 2002). No one submitted comments in opposition to the
proposed regulation, and the requirement was subsequently adopted in
interim and final regulations. See Interim Rule, Notice of Termination,
67 FR 78176 (December 23, 2002) and Final Regulation, Notice of
Termination, 68 FR 16958 (April 8, 2003). This history notwithstanding,
the Copyright Office does recognize that terminations effected under
section 203 are only now ripe, meaning that they are possible for the
first time as of January 1, 2013. This is not to say notices could not
be filed sooner. Indeed, for grants entered into thirty-five years ago,
during 1978, they could first be filed as of 2003, as early as 10 years
prior to the earliest possible effective date. But we do allow for the
fact that stakeholders are now focused on the issue to an increasing
degree, as the actual effective dates for section 203 begin to loom.
The Copyright Office also wishes to underscore that the existing
regulations, and the regulation adopted today, do not provide that a
notice of termination should identify the date of creation of the work.
Rather, the regulation requires identification of the date of execution
of the grant because for purposes of section 203, the date of execution
is central to establishing the 5-year window, 35-40 years later, during
which termination is permissible and may be effected. But, as noted
above and in the Office's more extensive Analysis of Gap Grants Under
the Termination Provisions of Title 17, the purpose of the regulation
being adopted today is to permit recordation of a notice of termination
of a Gap Grant when the terminating party recites, as the date of
execution of the grant, the date the work was created. The notice of
termination need not expressly recite that the work was created on a
particular date (although it may do so). However, for purposes of
establishing timeliness, it seems prudent, if not essential, that the
notice recite a date of execution of the grant. This said, and as
stated above, the Office is not unwilling to consider the issue more
fully in a separate proceeding, which could address questions including
whether current regulatory authority would allow the Office to publish
practical solutions or alternatives to documenting the date of
execution, for the sake of providing guidance to authors and grantees
alike and for the sake of establishing clarity in the marketplace.
The Office also believes the existing regulations on notices of
termination offer some relief to terminating parties when they cannot
precisely identify the date the work was created. Section 201.10 has,
since it was first adopted in 1977, included a ``harmless error''
provision. That provision currently provides that ``errors made in
giving the date or registration number referred to in paragraph
(b)(1)(iii), (b)(2)(iii), or (b)(2)(iv) of this section * * * shall not
affect the validity of the notice if the errors were made in good faith
and without any intention to deceive, mislead, or conceal relevant
information.'' 37 CFR 201.10(e)(2). Thus, since 1977 harmless errors in
identifying ``the date copyright was originally secured i[n] each work
to which the notice of termination applies,'' the requirement set forth
in paragraph (b)(1)(iii), have not affected the validity of the notice.
More pertinently, harmless errors in reciting the date of execution,
the requirement set forth in paragraph (b)(2)(iii) of section 201.10,
also have not affected the validity of a notice of termination under
section 203 since regulations governing section 203 notices of
termination were first adopted. This provision should provide relief
for terminating parties who provide a date of execution which, although
it is as accurate as the terminating party is able to ascertain, turns
out not to be the actual date of execution of the grant (i.e., in the
case of a Gap Grant, the actual date the work was created), so long as
the date is provided in good faith and without any intention to
deceive, mislead or conceal relevant information.
Of course, if the wrong date is recited in the notice and a court
subsequently determines that the actual date of execution was at a time
that places the effective date of termination or the date of service of
the notice of termination outside of the statutory windows, the
harmless error doctrine will be of no assistance. But that would not be
the result of the misstatement in the notice of termination of the date
of execution; rather, it would be because upon a review of all the
relevant facts, a court concludes that the actual date of execution was
too early or too late to provide a basis for the service of the notice
of termination.
With respect to the specific regulatory text proposed in the notice
of proposed rulemaking, the RIAA's comment has persuaded the Copyright
Office that treating the identification of the date of execution as a
matter of ``timeliness'' is the wrong approach because it conflates two
different topics: (1) Whether a notice of termination was served and/or
submitted for recordation on time, and (2) whether the grant that is
the subject of the notice of termination was made at a time that
qualifies it for termination under section 203. The analysis of the
first topic assumes that the grant is terminable under section 203; it
simply examines whether the notice was served and recorded in the
permissible time frame. In contrast, the analysis of the second topic
addresses the very
[[Page 32320]]
eligibility of the grant for termination under section 203.
Moreover, as originally drafted, the proposed amendments to Sec.
201.10(f)(4) related only to section 203 notices of termination, even
though Sec. 201.10(f)(4) in fact covers both section 203 and section
304 notices of termination. In particular, the following passage
ignored the fact that paragraph 4 is supposed to cover both types of
termination:
Conditions under which a notice of termination will be
considered untimely include: The date of execution stated therein
does not fall on or after January 1, 1978, as required by section
203(a) of title 17, United States Code; the effective date of
termination does not fall within the five-year period described in
section 203(a)(3) of title 17, United States Code.
The Office has therefore concluded that the language relating to
identification of the date of execution of the grant should not be
included in Sec. 201.10(f)(4), but should be moved to a separate
paragraph (f)(5) addressing only the issue of date of execution. The
other proposed revisions to Sec. 201.10(f)(4), describing situations
in which a notice of termination will be considered untimely, should
remain but should be amplified by a reference to section 304(c)(3)
(which, like section 203(a)(3), requires that the effective date of
termination fall within a prescribed time frame) following the language
that currently addresses situations in which the effective date of
termination does not fall within the five-year period specified by
section 203(a)(3). As a result, the second sentence of Sec.
201.10(f)(4) shall read as follows: ``Conditions under which a notice
of termination will be considered untimely include: The effective date
of termination does not fall within the five-year period described in
section 203(a)(3) or section 304(c)(3), as applicable, of title 17,
United States Code; or the documents submitted indicate that the notice
of termination was served less than two or more than ten years before
the effective date of termination.'' As noted in the notice of proposed
rulemaking, the circumstances identified in this paragraph (b)(4) are
not intended to be an exhaustive list of procedural failures that may
result in failure to record notices of termination.
For the sake of clarity, the new paragraph addressing
identification of the date of execution shall also specifically address
the issue of Gap Grants:
(5) In any case where an author agreed, prior to January 1,
1978, to make a grant of a transfer or license of rights in a work
that was not created until on or after January 1, 1978, a notice of
termination of a grant under section 203 of title 17 may be recorded
if it recites, as the date of execution, the date on which the work
was created.
The sole remaining issue is whether, as SIIA suggested, additional
language is necessary to clarify that this regulation is not a
``merits-based determination that could be incorrectly used by authors
as authority for the applicability of section 203 of Title 17.'' As
stated in the notice of proposed rulemaking, the Office's recordation
of notices of termination of Gap Grants is without prejudice to how a
court might ultimately rule on whether any particular document
qualifies as a notice of termination within the scope of section 203,
consistent with longstanding practices for all notices of termination
recorded by the Office. By permitting recordation of such a notice of
termination, the Office permits the terminating party to move forward
based upon a reasonable interpretation of the statute. Refusing to
permit recordation of a notice of termination of a Gap Grant would put
the Office in the position of imposing an unjustified impediment to the
ability of an author or an author's heirs to assert what may well be a
viable right to terminate a grant. If there is any dispute over the
validity of such a notice of termination (or of notices of termination
of Gap Grants in general), that dispute should be settled in the courts
(or in Congress, if Congress accepts the Office's suggestion to enact
legislation that will clarify the status of Gap Grants).
The amendment proposed in the notice of proposed rulemaking
included, in Sec. 201.10(f)(4), the already-existing language that
``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.'' However, that language would no longer apply
to recordation of Gap Grants now that the language relating to Gap
Grants is being expanded and moved to a separate paragraph. In
considering the issue further, the Office concludes that the proposed
language is no longer necessary in Sec. 201.10(f)(4) because the
existing regulatory text in Sec. 201.10(f)(5) (which will be
renumbered as Sec. 201.10(f)(6) following the insertion of the new
paragraph (f)(5)) makes it clear that recordation of a notice of
termination does not mean that the notice meets the requirements of the
law:
``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.''
However, we have modified that paragraph to include a reference to
``a court of competent jurisdiction,'' as this phrase appears in the
existing language in paragraph (f)(4) and was included in the notice of
proposed rulemaking.
List of Subjects in 37 CFR Part 201
Copyright, General provisions.
Final Regulation
In consideration of the foregoing, the Copyright Office amends part
201 of 37 CFR, as follows:
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. 203 and 304.
0
2. Section 201.10 is amended as follows:
0
a. By revising paragraph (f)(4);
0
b. By redesignating paragraphs (f)(5) and (f)(6) as paragraphs (f)(6)
and (f)(7);
0
c. By adding a new paragraph (f)(5);
0
d. In redesignated paragraph (f)(6), by removing ``met.'' and adding in
its place ``met, including before a court of competent jurisdiction.''
Sec. 201.10 Notices of termination of transfers and licenses.
* * * * *
(f) * * *
(4) Notwithstanding anything to the contrary in this section, the
Copyright Office reserves the right to refuse recordation of a notice
of termination as such if, in the judgment of the Copyright Office,
such notice of termination is untimely. Conditions under which a notice
of termination will be considered untimely include: the effective date
of termination does not fall within the five-year period described in
section 203(a)(3) or section 304(c)(3), as applicable, of title 17,
United States Code; or the documents submitted indicate that the notice
of termination was served less than two or more than ten years before
the effective date of termination. If a notice of termination is
untimely or if a document is submitted for recordation as a notice of
termination on or after the effective date of termination, the Office
will offer to record the document as a ``document pertaining to
copyright'' pursuant to Sec. 201.4(c)(3), but the Office will not
index the document as a notice of termination.
[[Page 32321]]
(5) In any case where an author agreed, prior to January 1, 1978,
to a grant of a transfer or license of rights in a work that was not
created until on or after January 1, 1978, a notice of termination of a
grant under section 203 of title 17 may be recorded if it recites, as
the date of execution, the date on which the work was created.
* * * * *
Dated: May 27, 2011.
Maria A. Pallante,
Acting Register of Copyrights.
Approved by
James H. Billington,
The Librarian of Congress.
[FR Doc. 2011-13845 Filed 6-3-11; 8:45 am]
BILLING CODE 1410-30-P