1995 Policy Decision amending Section 606.04 of Compendium II

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A% 	wT 	ANNOUNCEMENT	from the Copyright Office, Library of Congress, Washmgton, D.C. 20559-6000
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NOTICE OF POLICY DECISION
MODIFICATION O F APPEAL PROCEDURE
The following excerpt is taken from Volume 60, Number 86 of
the Federal R e ~ i s t e rfor Thursday May 4,1995 (pp. 21983-21984)
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 202
[Docket No. 95-41
Modification of Appeal Procedure
AGENCY: Library of Congress,
Copyright Office.
ACTION: Notice of policy decision.
SUMMARY: The Copyright Office of the
Library of Congress issues this Policy
Decision modifying the appeal procedure
regarding refusals to register a copyright
claim. Currently, this procedure is
specified in Compendium 11 of
Copyright OfFice Practices and an
applicant whose claim is rejected is
entitled to two reconsiderations, each
handled within the Examining Division.
The modified procedure establishes an
interim system with a Board of Appeals
to reconsider the second appeal that is
the final agency action.
EFFECTIVE DATE: June 5,1995.
FOR FURTHER INFORMATION CONTACT:
Marilyn J. Kretsinger, Acting General
Counsel, Copyright GC/I&R, P. 0 . Box
70400, Southwest Station, Washington,
D.C. 20024. Telephone: (202) 707-8380.
Telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION:
I. Background
One of the most significant
responsibilities assigned the Copyright
Office by Title 17 of the U.S. Code is the
registration of copyright claims.
Currently, the Copyright Office registers
slightly more than 600,000 copyright
claims annually, and refuses to register a
small percentage of these.
Subsections 410(a) and (b) of the
copyright law determine the parameters
of the registration system:
(a) When,after examination, the Register
of Copyrights determines that, in accordance
with the provisions of this title, the material
deposited constitutes copyrightable subject
matter and that the other legal and formal
requirements of this title have been met, the
Register shall register the claim and issue to
the applicant a certificate of registration under
the seal of the Copyright Office. The
certificate shall contain the information given
in the application, together with the number
and effective date of the registration.
(b) In any case in which the Register of
Copyrights determines that, in accordance
with the provisions of this title, the material
deposited does not constitute copyrightable
subject matter or that the claim is invalid for
any other reason, the Register shall refuse
registration and shall notify the applicant in
writing of the reasons for such refusal.
In administering these provisions, the
Copyright Office usually accepts as true
the facts given by the applicant. ' The
decision to register or not rests on a
determination of whether a prima facie
valid copyright claim has been
'Section 108.05 of Compendium I1 of Copyright
OfficePractices provides: "Factual deteminations.
In connection with its examining and related
activities,the Copyright Office does not ordinarily
make findings of fact with respect to publication or
any other thing done outside the Copyright Office."
This practice is qualified by section 108.05(b)
providing: "Administrativenotice. The Copyright
Officemay take notice of matters of general
knowledge. It may use such knowledge as the basis
for questioning applications that appear to contain
or be based upon inaccurate or erroneous
information."
submitted under the provisions of the
Copyright Act.
An applicant may appeal a refusal to
register using the appeal procedure
specified in the Compendium of
Copyright Office Practices. Under this
practice, an applicant whose claim has
been denied registration is entitled to
two reconsiderations, each handled*
within the Examining Division.
Specifically, the procedure provides:
Refusal to register: request for
reexamination. When the Copyright Office
has refused a claim as submitted, it notifies
the applicant in writing of the refusal to
register. After such notification, the applicant
may set forth in writing his or her objections
to the refusal and request that the Office
reconsider its action. If the claim is refused
kfter reconsideration, the head of the
appropriate Examining Division section will
send the applicant written notification of the
reasons for refusal. The applicant may again
request reconsideration. If the claim is
refused again, the Chief of the Examining
Division will notify the applicant in writing of
the reasons. The Division Chief's decision
constitutes final agency action.
Section 606.04 Compendium I1 of
Copyright Office Practices.
11. Circumstances leading to
modification.
Although the Office's practice
concerningappeals is long-standing, we
have periodically considered modifying
it. A number of commentators have
criticized the current practice on the
grounds that containment within the
Examining Division leads to an overly
closed system. Even under the existing
'Error: line should read;
"two reconsiderations, each handled"
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practice, however, there has been some
discussion of particular cases with the
General Counsel or the Register. More
recently, the Library of Congress
appointed an Advisory Committee on
Copyright Registration and Deposit,
(ACCORD);in their meetings, members
of this Committee criticized the appeals
procedure and suggested that it be
changed. Library of Congress, Advisory
Committee on Copyright Registration
and Deposit, 31 (1993).
The Copyright Office is committed to
improving this procedure and will be
publishing a Notice of Proposed
Rulemaking seeking public comment on
legal and administrative issues
associated with establishing a more
formal procedure at a later date.
Meanwhile, as a first step, the Office has
decided to establish a Board of Appeals
within the Copyright Office as an interim
system. By instituting this Board, we
will gain experience in administering an
alternative system.
After the Office has some practical
experience with the new system, we will
make a detailed proposal and seek public
comment. Following review of these
comments, the Copyright Office will
publish the new appeal procedure as a
regulation. Although we are now
adopting as an interim system the Board
of Appeals described below, the precise
nature of the final appeal procedure will
not be established until we publish final
rules. Anyone who wishes to suggest
specific guidelines for our consideration
before the proposed rulemaking should
submit them to the Board of Appeals,
Copyright GC/I&R, P.O. Box 70400,
Southwest Station, Washington, D.C.
20024.
1II.Policy Decision.
The Copyright Office's appeal
procedure set out in 9606.04 of the
Compendium is amended to read as
follows:
Appeals of refusal to register: request for
reconsideration. When the Copyright Office
has refused to register a claim as submitted, it
notifies the applicant in writing of the refusal
to register. After such notification, the
applicant may set forth in writing his or her
objections to the refusal and request that the
Office reconsider its action. The appeal letter
should be addressed to the appropriate
section of the Examining Division, Copyright
Office, Washington, D.C. 20559.The first
request for reconsideration must be received
in the Copyright Office within 120 days of the
date of the Office's first refusal to register, and
the envelope containing the request should be
clearly marked: FIRST APPEAL/
EXAMINING DIVISION.
If the claim is refused after
reconsideration, the head of the appropriate
section of the Examining Division sends the
applicant written notification of the reasons
for refusal. The applicant may again request
reconsiderationin writing. This second
appeal must be received in the Copyright
Office within 120 days of the date of the
Office's refusal of the first appeal, and be
directed to the Board of Appeals at the
following address: Copyright GC/I&R,
P.O. Box 70400, Southwest Station,
Washington, D.C., 20024. The Board of
Appeals shall consist of the Register of
Copyrights, the General Counsel, and the
Chief of the Examining Division, or their
respective designees. The Board shall
consider the second appeal and render a final
decision. The designated Chair of the Board
of Appeals will write the applicant setting out
the reasons for acceptance or denial of the
claim. The Appeals Board's decision
constitutes final agency action.
Dated: April 27,1995.
Marybeth Peters,
Register of Copyrights.
Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 95-11045 Filed 5-3-95; 8:45 am]
Billing Code 1410-30-P
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