04-28396. Reconsideration Procedure

AGENCY:

Copyright Office, Library of Congress.

ACTION:

Final rule.

SUMMARY:

The Copyright Office is publishing a final rule concerning reconsideration procedures. With a few modifications, this regulation continues procedures adopted by the U.S. Copyright Office in 1995 that permit copyright applicants to request reconsideration of its decisions to refuse registration. This regulation amends those procedures and incorporates them into Copyright Office regulations. Copyright applicants will continue to have two opportunities to seek reconsideration of a Copyright Office decision to refuse registration. A significant modification is that the reconsideration procedures are also made applicable to the Office's refusals to register mask works and vessel hull designs.

EFFECTIVE DATE:

January 27, 2005.

FOR FURTHER INFORMATION CONTACT:

Marilyn J. Kretsinger, Associate General Counsel, or Renee Coe, Senior Attorney at this address: Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024-0400. Telephone: [phone]. Telefax: [phone].

SUPPLEMENTARY INFORMATION:

On July 13, 2004, the Copyright Office published a notice of proposed rulemaking seeking comment on its proposed revision of parts 202, 211 and 212 of subchapter A of Chapter II, 37 CFR. The purpose of this notice is to announce the final rule.

This regulation establishes procedures for applicants to request that the Copyright Office reconsider refusals to register copyright claims and claims in mask works or vessel hull designs. There are two opportunities for reconsideration of a refusal to register. At the first level of reconsideration, the Examining Division of the Copyright Office reviews its initial decision to refuse registration. At the second level, the Review Board conducts the review of a refusal to register. For administrative reasons, the Copyright Office is making one change in the membership of the Review Board which considers the second request for reconsideration. The Review Board is composed of three members; the first two members are the Register of Copyrights and the General Counsel or their respective designees. The third member will be designated by the Register. This rule also establishes procedures for mailing or hand delivering requests for reconsideration and related documents.

In response to the publication of the proposed rule, the Copyright Office did not receive any comments. Consequently, the Copyright Office is adopting the previously proposed text, as a final rule, with the one administrative change noted above and without substantive change, as follows:

List of Subjects

37 CFR Part 202

• Claims
• Copyright

37 CFR Part 211

• Freedom of Information

37 CFR Part 212

• Vessels

Proposed Regulations

In consideration of the foregoing, the Copyright Office amends parts 202, 211 and 212 of 37 CFR, chapter II in the manner set forth below:

PART 202—REGISTRATION OF CLAIMS TO COPYRIGHT

1. The authority citation for part 202 continues to read as follows:

Authority: 17 U.S.C. 702.

2. Add § 202.5 to read as follows:

§ 202.5

Reconsideration Procedure for Refusals to Register.

(a) General. This section prescribes rules pertaining to procedures for administrative review of the Copyright Office's refusal to register a claim to copyright, a mask work, or a vessel hull design upon a finding by the Office that the application for registration does not satisfy the legal requirements of title 17 of the United States Code. If an applicant's initial claim is refused, the applicant is entitled to request that the initial refusal to register be reconsidered.

(b) First reconsideration. Upon receiving a written notification from the Examining Division explaining the reasons for a refusal to register, an applicant may request that the Examining Division reconsider its initial decision to refuse registration, subject to the following requirements:

(1) An applicant must request in writing that the Examining Division reconsider its decision. A request for reconsideration must include the reasons the applicant believes registration was improperly refused, including any legal arguments in support of those reasons and any supplementary information. The Examining Division will base its decision on the applicant's written submissions.

(2) The fee set forth in § 201.3(d)(4) of this chapter must accompany the first request for reconsideration.

(3) The first request for reconsideration and the applicable fee must be received by the Copyright Office no later than three months from the date that appears in the Examining Division's written notice of its initial decision to refuse registration. When the ending date for the three-month time period falls on a weekend or a Federal holiday, the ending day of the three-month period shall be extended to the next Federal work day.

(4) If the Examining Division decides to register an applicant's work in response to the first request for reconsideration, it will notify the applicant in writing of the decision and the work will be registered. However, if the Examining Division again refuses to register the work, it will send the applicant a written notification stating the reasons for refusal within four months of the date on which the first request for reconsideration is received by the Examining Division. When the ending date for the four-month time period falls on a weekend or a Federal holiday, the ending day of the four-month period shall be extended to the next Federal work day. Failure by the Examining Division to send the written notification within the four-month period shall not result in registration of the applicant's work.

(c) Second reconsideration. Upon receiving written notification of the Examining Division's decision to refuse registration in response to the first request for reconsideration, an applicant may request that the Review Board reconsider the Examining Division's refusal to register, subject to the following requirements:

(1) An applicant must request in writing that the Review Board reconsider the Examining Division's decision to refuse registration. The second request for reconsideration must include the reasons the applicant believes registration was improperly refused, including any legal arguments in support of those reasons and any supplementary information, and must address the reasons stated by the Examining Division for refusing registration upon first reconsideration. The Board will base its decision on the applicant's written submissions.

(2) The fee set forth in § 201.3(d)(4) of this chapter must accompany the second request for reconsideration.

(3) The second request for reconsideration and the applicable fee must be received in the Copyright Office no later than three months from the date that appears in the Examining Division's written notice of its decision to refuse registration after the first request for reconsideration. When the ending date for the three-month time period falls on a weekend or a Federal holiday, the ending day of the three-month period shall be extended to the next Federal work day.

(4) If the Review Board decides to register an applicant's work in response to a second request for reconsideration, it will notify the applicant in writing of the decision and the work will be registered. If the Review Board upholds the refusal to register the work, it will send the applicant a written notification stating the reasons for refusal.

(d) Submission of reconsiderations. (1) All mail, including any that is hand delivered, should be addressed as follows: RECONSIDERATION, Copyright R&P Division, P.O. Box 71380, Washington, DC 20024-1380. If hand delivered by a commercial, non-government courier or messenger, a request for reconsideration must be delivered between 8:30 a.m. and 4 p.m. to: Congressional Courier Acceptance Site, located at Second and D Streets, NE., Washington, DC. If hand delivered by a private party, a request for reconsideration must be delivered between 8:30 a.m. and 5 p.m. to: Room 401 of the James Madison Memorial Building, located at 101 Independence Avenue, SE., Washington, DC.

(2) The first page of the written request must contain the Copyright Office control number and clearly indicate either “FIRST RECONSIDERATION” or “SECOND RECONSIDERATION,” as appropriate, on the subject line.

(e) Suspension or wavier of time requirements. For any particular request for reconsideration, the provisions relating to the time requirements for submitting a request under this section may be suspended or waived, in whole or in part, by the Register of Copyrights upon a showing of good cause. Such suspension or waiver shall apply only to the request at issue and shall not be relevant with respect to any other request for reconsideration from that applicant or any other applicant.

(f) Composition of the Review Board. The Review Board shall consist of three members; the first two members are the Register of Copyrights and the General Counsel or their respective designees. The third member will be designated by the Register.

(g) Final agency action. A decision by the Review Board in response to a second request for reconsideration constitutes final agency action.

PART 211—MASK WORK PROTECTION

3. The authority citation for part 211 continues to read as follows:

Authority: 17 U.S.C. 702 and 908.

4. Add § 211.7 to read as follows:

§ 211.7

Reconsideration procedure for refusals to register.

The requirements prescribed in § 202.5 of this chapter for reconsideration of refusals to register copyright claims are applicable to requests to reconsider refusals to register mask works under 17 U.S.C. chapter 9, unless otherwise required by this part.

PART 212—PROTECTION OF VESSEL HULL DESIGNS

5. The authority citation for part 212 continues to read as follows:

Authority: 17 U.S.C. chapter 13.

6. Add § 212.7 to read as follows:

§ 212.7

Reconsideration procedure for refusals to register.

The requirements prescribed in § 202.5 of this chapter for reconsideration of refusals to register copyright claims are applicable to requests to reconsider refusals to register vessel hull designs under 17 U.S.C. chapter 13, unless otherwise required by this part.

Dated: December 3, 2004.

Marybeth Peters,

Register of Copyrights.

Approved by:

James H. Billington,

Librarian of Congress.