U.S. Copyright Office, Library of Congress.
The U.S. Copyright Office is issuing a final rule to allow authors and claimants to replace or remove personally identifiable information (“PII”) from the Office's online registration catalog. This rule allows authors and claimants, or their authorized representatives, to request the replacement or removal of certain PII that is requested by the Office and collected on a registration application, such as a home addresses or personal phone numbers, from the Office's internet-accessible public catalog, while retaining that information in the Office's offline records as required by law. The rule also codifies an existing practice that removes extraneous PII, such as driver's license numbers, social security numbers, banking information, and credit card information, on the Office's own volition or upon request by authors, claimants, or their authorized representatives.
Effective March 6, 2017.
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Cindy Abramson, Assistant General Counsel, by email at email@example.com, or Abioye Mosheim, Attorney Advisor, by email at firstname.lastname@example.org. Each can be reached by telephone by calling 202-707-8350.
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On September 15, 2016, the Copyright Office published a notice of proposed rulemaking (“NPRM”) to create procedures to request removal of certain “personally identifiable information” (“PII”) from the Office's registration records.
PII is generally considered to be any information that has the potential to identify a specific individual. The NPRM concerned two distinct categories of PII.
First, the Office requests and receives certain types of PII during the registration process (e.g., dates of birth, addresses, telephone numbers, fax numbers, and email addresses). The collection of some of that information is mandated by statute or regulation; other information is optional.
This information is referred to herein as “requested PII.”
Second, the Office does not request, but sometimes receives, additional PII that applicants include in their registration applications, such as driver's license numbers, social security numbers, banking information, and credit card information on their registration applications. Such information is extraneous and unnecessary for the processing and maintenance of copyright registration records. This information is referred to herein as “extraneous PII.”
With respect to requested PII—information that the Copyright Office purposely collects as part of registration—the Copyright Act imposes certain obligations on the Office to preserve that information as part of the public record. The Act requires the Register to ensure that “records of . . . registrations . . . are maintained, and that indexes of such records are prepared,” and that “[s]uch records and indexes . . . be open to public inspection,” thus creating a public record. 17 U.S.C. 705(a), 705(b). The public record of copyright registrations serves several important functions. Chief among these is that the record Start Printed Page 9005provides essential facts relevant to the copyright claim and information that a potential user of a copyrighted work can use to locate the work's owner. The registration record can also be a valuable aid for determining the term of copyright protection, by providing information such as the author's date of death, the publication date for the work, or the year of creation of the work.
A separate provision of the Act requires the Register of Copyrights to “compile and publish . . . catalogs of all copyright registrations.” 17 U.S.C. 707(a). For most of the Office's history, this catalog was maintained in paper form as the Catalog of Copyright Entries (“CCE”). Starting in 1994, however, the Office began providing the public with access to a computerized database of post-1977 copyright registration and recordation catalog entries via the internet. Then, in 1996, the Office decided to end publication of the printed CCE and publish copyright registration information solely via an online public catalog. See 61 FR 52465 (Oct. 7, 1996).
Initially, the PII revealed in the online public catalog was limited to names and, when volunteered, the author's year of birth. By 2007, however, with the advent of the Copyright Office's online registration system (“eCO”), a broader range of PII was pushed from the Office's registration records into the online public catalog, including the postal address of the claimants, and the name, postal address, email address and phone number of the person authorized to correspond about, and/or provide rights and permission to use, the registered work. See 72 FR 36883, 36887 (July 6, 2007). The current online public catalog, however, does not contain all of the information that is contained in the Office's full registration records. For instance, the online public catalog currently does not include the text of correspondence between the Office and the applicant. This information is maintained solely in the Office's offline records, although members of the public can obtain copies of it by making a request to the Office.
In addition, while the information in the online public catalog initially could only be searched and retrieved via the Office's Web site, in 2007 third parties began harvesting registration information, including PII, from the catalog, and posting that information on alternative Web sites, which were then indexed by search engines. As a result, authors and claimants began noticing their personal information appearing in internet search results, and began asking the Office to remove that information from the Office's online public catalog.
In 2008, the Office published a list of frequently asked questions (“FAQs”) on privacy to address some of these concerns.
In the FAQs, the Office stressed that, by statute, it was required to collect certain information as part of the registration application and maintain it as part of its public records. The FAQs advised the public that if they did not wish sensitive personal information to appear in the online public catalog, they should refrain from providing it during the registration process, if possible. Applicants were advised to instead consider providing non-personal information, such as information about a third-party agent, a post office box, or a non-personal email address. But the Office warned that, if the applicant provided personal information, it would be included in the online public catalog. Both the Web page to log in to the online registration system and the Web page to download paper application forms include links to the privacy FAQs. See eCO Registration System, Privacy: Copyright Public Records, https://www.copyright.gov/registration/; Forms, https://www.copyright.gov/forms/; see also U.S. Copyright Office, Compendium of U.S. Copyright Office Practices (“Compendium (Third)”) 205 (3d ed. 2014).
The Office's practices have differed with respect to extraneous PII—such as driver's license numbers, social security numbers, credit card information, and banking information—that applicants sometimes include on registration applications, even though the application does not require or request such information. Given the particular sensitivity of that information, and the fact that it is not requested as part of the registration application, the Office has developed an informal practice of removing extraneous PII from its registration records, including the online public catalog and the offline records, for no fee. During the registration process, the Office may remove extraneous PII, particularly if it is sensitive information, on its own volition. After the registration is complete, the Office will remove extraneous PII upon request. See Compendium (Third) 1804.2 (“If the registration specialist discovers a social security number, driver's license number, credit card number, or bank account number in the application, he or she will remove that information from the record without communicating with the applicant [and] [i]f this information is not discovered during the examination process . . . [t]he Office will remove [it] upon written request.”).
The NPRM explained in detail the rationale for and basic operation of the proposed rule. The Office solicited and received sixteen comments on the proposed rule. Having reviewed and carefully considered all of the comments received, the Copyright Office now issues a final rule that closely follows the proposed rule, with some alterations in response to the comments, as discussed below.
II. Discussion of Public Comments
Replacement of Name After Legal Name Change. The NPRM proposed to allow authors and claimants to request the removal of certain PII from the online public catalog only, and replace it with non-personal information. Names were specifically excluded from this category in the proposed rule. In the NPRM, the Office gave three reasons for not allowing authors or claimants to remove their names from the online public catalog, or replace an author or claimant's name with a pseudonym or an anonymous designation: (1) Changing or removing a name is not necessary to prevent privacy invasions as long as associated PII is removed; (2) allowing authors or claimants to alter their names in the online public catalog may lead to confusion regarding the term of copyright protection for the work; and (3) removal of a claimant's name could lead to confusion about the correct copyright term.
Two commenters urged the Office to allow authors or claimants to replace their names in the online public catalog. They argued that, for transgender individuals, disclosure of a birth name equals disclosure of transgender status. National Center for Transgender Equality (“NCTE”) Comments at 1; T. Brown Comments. Although it may be possible to use a supplementary registration to change one's name, both the original registration and the supplementary registration appear in the online registration record. According to these commenters, having a transgender individual's birth name and changed name both appear in the record could jeopardize the “well-being and personal and professional life” of a transgender individual, put them in danger, or subject them to “employment discrimination, bodily harm and/or worse.” T. Brown Comments. NCTE argued that not allowing a person who has received a legal name change to replace their original name with the legally changed name may affect victims of domestic violence as well. NCTE Comments at 1.Start Printed Page 9006
NCTE suggested two revisions to the NPRM, one of which the Office reproduces here:
201.2(e)(2)(iii) Names of authors or claimants may not be removed or replaced with a pseudonym. Requests to substitute the prior name of the author or claimant with the current legal name of the author or claimant must be accompanied by official documentation of the legal name change.
NCTE Comments at 1. The Office finds compelling NCTE's and T. Brown's arguments for allowing a name change in the online record, and adopts the above suggested language in the final rule.
NCTE also recommended that the Office not include a note in the online record indicating that the legal name has been modified because it could pose safety and privacy concerns to transgender individuals. NCTE Comments at 3. While the Office takes seriously these concerns, as mentioned in the NPRM, the Copyright Act imposes certain obligations on the Office to preserve information as part of the public record. See 17 U.S.C. 705(a), 705(b). Pursuant to the new rule, “a note indicating that the online record has been modified will be added to the online registration record.” 17 U.S.C. 201.2(e)(6). This note, however, will merely indicate that a change was made to the record but will not specify whether or not a change to the legal name was made. The Office believes that this clarification addresses NCTE's concerns.
Retention of Original PII in Offline Records. The NPRM also proposed that the original information would be maintained in the Office's offline records and would be available for public inspection by visitors to the Copyright Office and upon request, consistent with the Office's statutory responsibilities to maintain such records and make them available to the public. The NPRM sought to strike an appropriate balance between the public's interest in a robust online record and concerns of privacy and safety in individual cases.
The Software and Information Industry Association (“SIIA”) expressed concern about this aspect of the rule, commenting that “the very reason for the registration data is to enable the licensing of works” and the “proposal makes that more difficult.” SIIA Comments at 3. In SIIA's view, “[t]hose seeking information would have to hire someone in Washington to physically go to the Copyright Office records and search them.” Id. The Office, however, crafted the rule with that exact concern in mind. The Office does not intend to make it more difficult to license works, which is why the rule does not permit a claimant to eliminate address information from the online public catalog, but instead only allows for the replacement of a home address with a verifiable substitute address, such as a current post office box or third-party address. As the NPRM explained, “allowing the wholesale removal of a claimant address would impede the public's ability to contact a copyright owner to obtain permission to use the work.” 81 FR at 63441. The Office has made this point even more explicit in the final rule.
With respect to other types of PII, alternate information must be provided, unless a stringent standard is met: Specifically, the requester must demonstrate that the stated concern substantially outweighs the need for the information to remain in the public record. As the NPRM explained, “[t]his higher standard is warranted because removing information entirely from the online public catalog would result in a diminished record available for search via the internet.” 81 FR at 63442. The Office does not anticipate that it will liberally grant such requests. Additionally, under existing practices, one does not have to travel to Washington to physically search records. Members of the public may obtain a search for and copies of registration records upon request and have the results sent to them via U.S. mail or courier. See generally Compendium (Third) 2406, 2407.
The Copyright Alliance also recommended revising the rule to allow for bulk access to offline records. Copyright Alliance Comments at 4. The Office's current technology systems does not permit bulk access. While the Office declines to adopt this suggestion under the PII rule, it will consider the recommendation as part of its broader technology modernization efforts.
Various Concerns Regarding Collection of PII in Registration Process. Some commenters including the National Writers Union and the American Society of Journalists and Authors (“NWU/ASJA”), stated that the Office should not require an author or claimant to make any contact information publicly available. See NWU/ASJA Comments at 4-5, 7-8; Alexander Kunz Comments. Other commenters asked the Office to do away with the collection of physical addresses and only collect email addresses. See e.g., V.E. Anonymous Comments; Helen Zhang Comments (stating that even providing a substitute non-personal address or P.O. Box may give an unwanted party the author or claimant's approximate location). But, as stated in the NPRM, the Office is mandated by statute to collect and make public a claimant's address. See 17 U.S.C. 409(1) (“The application for copyright registration shall . . . include the name and address of the copyright claimant.”). Given that section 409(1) was added to the Copyright Act before electronic mail existed, the Office interprets that provision to mean that the claimant must provide a physical mailing address—not an electronic mailing address. See H.R. Rep. 155-156. Therefore, the Office declines to adopt any regulation that would do away with the collection and maintenance of physical claimant addresses. That said, the Office has always advised in its Privacy FAQs that the inclusion of any physical address other than the claimant's address is optional; accordingly, applicants are advised to think carefully before providing a claimant's personal physical address, and are instead encouraged to provide a third-party agent's address, a post office box, or a non-personal email address.
Several commenters recommended that the Office amend the rule to either provide notice to applicants at the time of registration that their PII will be on the internet and to advise them of their options for avoiding publication of their PII, or to provide an “opt out” mechanism on the registration application that would allow the applicant to opt out of providing his or her PII. See e.g., Copyright Alliance Comments at 3; Alexander Kunz Comments. But, as mentioned in the NPRM and above, the Office already provides links to its Privacy FAQs on both the online registration application and the Web page that houses the downloadable paper registration applications. Additionally, eCO and each paper registration application contains a Privacy Act Notice that advises the applicant that by completing the application it is authorizing the Office to collect the applicant's PII and consenting to routine uses of the PII, including publication to give legal notice of the applicant's copyright claim.
The Copyright Alliance suggested that the rule provide a “do not contact” mechanism at the time of registration. Copyright Alliance Comments at 3. It stated that “providing registrants with the option of indicating they do not wish to be contacted . . . should decrease the amount of unwanted contact and encourage creators to feel more comfortable about providing their information.” Copyright Alliance Comments at 3. Without any empirical evidence to support such an assertion, the Office declines to adopt this Start Printed Page 9007recommendation; it is unclear how providing PII but asking members of the public to not contact an author using that PII will actually deter unwanted contact. Additionally, eCO is not currently designed to permit a “do not contact” option at registration, and adding such an option would require updates to the eCO system. Accordingly, at this time the Office declines to adopt the Copyright Alliance's “do not contact” suggestion, but may consider it at a later date as part of its broader technology modernization efforts.
Finally, the Office notes that NWU/ASJA made several comments not relevant to the NPRM, including that the Office should repeal the requirement of registration for enforcement and remedies and withdraw proposed orphan works legislation. See NWU/ASJA Comments at 3. NWU/ASJA also alleges that the requirement to make contact information public is a prohibited formality under the Berne Convention and that the Office's gathering and maintaining information on a registration application violates the Privacy Act because the information gathered is not relevant and necessary to accomplish the mission of the Copyright Office, and is not mandated by statute. See NWU/ASJA Comments at 4-5, 7. Although the Office does not agree that these requirements violate Berne or the Privacy Act, this rulemaking is not the proper forum in which to address these concerns in detail. The requirements that NWU/ASJA complain of, however, are part of the Copyright Act, and the Office cannot create exceptions to them as part of this rulemaking.
“Verified” Addresses. As the NPRM explained, the proposed rule does not allow a claimant to eliminate address information from the online public catalog, but instead would only allow for the replacement of a home address with a verifiable substitute address, such as a current post office box or third-party address.
One commenter, Music Reports, recommended the following change to the proposed rule: The Office should require the substitute address information be “verified”—not just be verifiable—at time of application, by requiring notarized documentation of the requester's identity, and by requiring the requester to provide evidence that one is able to receive mail at that address. Music Reports Comments at 2. The Office believes that adding this burden is unnecessary. The rule already requires that the requester provide the Office with “verifiable” information, meaning that the requester will have to aver that the replacement address is one at which the authorand/or claimant can receive mail. And the requester is required to append an affidavit to the request stating as much. Therefore, the Office declines to adopt Music Reports recommendations in the final rule.
Fees. The NPRM proposed that the cost for filing an initial request for replacement or removal of requested PII would be $130, and the fee for reconsideration of denied requests for replacement or removal of requested PII would be $60. There would be no fee for requests to remove extraneous PII. For reconsiderations, the NPRM proposed a flat fee of $60 per request, regardless of the number of registration records referenced in the request. As the NPRM stated, both fees are non-refundable.
Several commenters thought the initial fee for requesting the replacement or removal of requested PII was unreasonable. See e.g., Copyright Alliance Comments at 3; Cletus Price Comments; Alexander Kunz Comments; Helen Zhang Comments. The Office calculated the fee, however, after carefully considering the time and labor required to review and process these requests, including the salaries of junior and senior staff who will take part in the review, draft the decisions, and perform the data entry; costs associated with docketing and responding to requests via U.S. mail; system costs related to entering changes into the online public catalog as well as updating the offline registration records; and costs associated with printing a new registration certificate.
One commenter stated that “[r]equiring [an] applicant to submit requested PII then wait for the Office to publish it in its online records and then requiring the individual to request and pay $130 to have some of it taken down would be a very inconvenient process.” Cletus Price Comments. But the Office notes that PII does not necessarily need to be provided as part of the initial registration application. The registration application instructions, as well as the above-mentioned privacy FAQs, warn applicants at the time of registration that any PII provided on the registration application will be made public and that, in order to avoid any issues regarding security or privacy, to provide non-personal information (like a P.O. Box or business address) where possible, or where the information is optional, to not provide PII at all.
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For the reasons set forth in the preamble, the Copyright Office amends 37 CFR parts 201 and 204 of 37 CFR chapter II as follows:
PART 201—GENERAL PROVISIONS
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1. The authority citation for part 201 continues to read, in part, as follows: End Amendment Part
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2. In § 201.1, revise the section heading and add paragraph (c)(8) to read as follows: End Amendment Part
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Communication with the Copyright Office.
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(8) Requests to remove PII from registration records. Requests to remove personally identifiable information from registration records pursuant to §§ 201.2(e) and (f) should be addressed to: U.S. Copyright Office, Associate Register of Copyrights and Director of the Office of Public Information and Education, P.O. Box 70400, Washington, DC 20024-0400. Requests should be clearly labeled “Request to Remove Requested PII,” “Request for Reconsideration Following Denial of Request to Remove Requested PII,” or “Request to Remove Extraneous PII,” as appropriate.
3. In § 201.2, add paragraphs (e) and (f) to read as follows: End Amendment Part
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Information given by the Copyright Office.
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(e) Requests for removal of requested personally identifiable information from the online public catalog. (1) In general, an author, claimant of record, or the authorized representative of the author or claimant of record may submit a request to remove certain categories of personally identifiable information (“PII”) described in paragraph (e)(2) of this section from the Copyright Office's online public catalog by following the procedure set forth in paragraph (e)(3) of this section. Where the requester provides verifiable, non-personally identifiable substitute information to replace the PII being removed, the Office will grant the request unless it determines that the need to maintain the original information in the public record substantially outweighs the safety, privacy, or other stated concern. If the requester does not provide verifiable, non-personally-identifiable substitute information, the Office will grant the request only if the safety, privacy, or other stated concern substantially Start Printed Page 9008outweighs the need for the information to remain in the public record. The Office will review requests by joint authors or claimants on a case-by-case basis.
(2) Categories of personally identifiable information that may be removed from the online public catalog include names, home addresses, personal telephone and fax numbers, personal email addresses, and other information that is requested by the Office as part the copyright registration application except that:
(i) Requests for removal of driver's license numbers, social security numbers, banking information, credit card information and other extraneous PII covered by paragraph (f) of this section are governed by the provisions of that paragraph.
(ii) Requests to remove the address of a copyright claimant must be accompanied by a verifiable substitute address. The Office will not remove the address of a copyright claimant unless such a verifiable substitute address is provided.
(iii) Names of authors or claimants may not be removed or replaced with a pseudonym. Requests to substitute the prior name of the author or claimant with the current legal name of the author or claimant must be accompanied by official documentation of the legal name change.
(3) Requests for removal of PII from the online catalog must be in the form of an affidavit, must be accompanied by the non-refundable fee listed in § 201.3(c), and must include the following information:
(i) The copyright registration number(s).
(ii) The name of the author and/or claimant of record on whose behalf the request is made.
(iii) Identification of the specific PII that is to be removed.
(iv) If applicable, verifiable non-personally-identifiable substitute information that should replace the PII to be removed.
(v) In the case of requests to replace the names of authors or claimants, the request must be accompanied by a court order granting a legal name change.
(vi) A statement providing the reasons supporting the request. If the requester is not providing verifiable, non-personally-identifiable substitute information to replace the PII to be removed, this statement must explain in detail the specific threat to the individual's personal safety or personal security, or other circumstances, supporting the request.
(vii) The statement, “I declare under penalty of perjury that the foregoing is true and correct.”
(viii) If the submission is by an authorized representative of the author or claimant of record, an additional statement, “I am authorized to make this request on behalf of [name of author or claimant of record].”
(ix) The signature of the author, claimant of record, or the authorized representative of the author or claimant of record.
(x) The date on which the request was signed.
(xi) A physical mailing address to which the Office's response may be sent (if no email is provided).
(xii) A telephone number.
(xiii) An email address (if available).
(4) Requests under this paragraph (e) must be mailed to the address listed in § 201.1(c).
(5) A properly submitted request will be reviewed by the Associate Register of Copyrights and Director of the Office Public Information and Education or his or her designee(s) to determine whether the request should be granted or denied. The Office will mail its decision to either grant or deny the request to the address indicated in the request.
(6) If the request is granted, the Office will remove the information from the online public catalog. Where substitute information has been provided, the Office will add that information to the online public catalog. In addition, a note indicating that the online record has been modified will be added to the online registration record. A new certificate of registration will be issued that reflects the modified information. The Office will maintain a copy of the original registration record on file in the Copyright Office, and such records shall be open to public inspection and copying pursuant to paragraphs (b), (c), and (d) of this section. The Office will also maintain in its offline records the correspondence related to the request to remove PII.
(7) Requests for reconsideration of denied requests to remove PII from the online public catalog must be made in writing within 30 days from the date of the denial letter. The request for reconsideration, and a non-refundable fee in the amount specified in § 201.3(c), must be mailed to the address listed in § 201.1(c). The request must specifically address the grounds for denial of the initial request. Only one request for reconsideration will be considered per denial.
(f) Requests for removal of extraneous PII from the public record. Upon written request, the Office will remove driver's license numbers, social security numbers, banking information, credit card information, and other extraneous PII that was erroneously included on a registration application from the public record. There is no fee for this service. To make a request, the author, claimant, or the authorized representative of the author or claimant, must submit the request in writing using the contact information listed in § 201.1(c). Such a request must name the author and/or claimant, provide the registration number(s) associated for the record in question, and give a description of the extraneous PII that is to be removed. Once the request is received, the Office will remove the extraneous information from both its online and offline public records. The Office will not include any notation of this action in its records.
4. In § 201.3, add paragraph (c)(19) to read as follows: End Amendment Part
Fees for registration, recordation, and related services, special services, and services performed by the Licensing Division.
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|Registration, recordation and related services||Fees ($)|
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|(19) Removal of PII from Registration Records|
|(i) Initial request, per registration record||130|
|(ii) Reconsideration of denied requests, flat fee||60|
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PART 204—PRIVACY ACT: POLICIES AND PROCEDURES
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5. The authority citation for part 204 continues to read as follows: End Amendment Part
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6. Revise § 204.7 to read as follows: End Amendment Part
Request for correction or amendment of records.
(a) Any individual may request the correction or amendment of a record pertaining to her or him. Requests for the removal of personally identifiable information requested by the Copyright Office as part of an application for copyright registration are governed by § 201.2(e) of this chapter. Requests for the removal of extraneous personally identifiable information, such as driver's license numbers, social security numbers, banking information, and credit card information from registration records are governed by § 201.2(f) of this chapter. With respect to the correction or amendment of all other information contained in a copyright registration, the set of procedures and related fees are governed by 17 U.S.C. 408(d) and § 201.5 of this chapter. With respect to requests to amend any other record that an individual believes is incomplete, inaccurate, irrelevant or untimely, the request shall be in writing and delivered either by mail addressed to the U.S. Copyright Office, Supervisory Copyright Information Specialist, Copyright Information Section, Attn: Privacy Act Request, P.O. Box 70400, Washington, DC 20024-0400, or in person Monday through Friday between the hours of 8:30 a.m. and 5 p.m., eastern time, except legal holidays, at Room LM-401, Library of Congress, U.S. Copyright Office, 101 Independence Avenue SE., Washington, DC 20559-6000. The request shall explain why the individual believes the record to be incomplete, inaccurate, irrelevant, or untimely.
(b) With respect to requests for the correction or amendment of records that are governed by this section, the Office will respond within 10 working days indicating to the requester that the requested correction or amendment has been made or that it has been refused. If the requested correction or amendment is refused, the Office's response will indicate the reason for the refusal and the procedure available to the individual to appeal the refusal.
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Dated: January 23, 2017.
Karyn Temple Claggett,
Acting Register of Copyrights and Director of the U.S. Copyright Office.
Librarian of Congress.
[FR Doc. 2017-02238 Filed 2-1-17; 8:45 am]
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