Copyright Office, Library of Congress.
Temporary rule.
The Copyright Office of the Library of Congress is publishing an interim rule relating to fees for special handling of registration claims that have been pending for at least six months. Special handling is the expedited processing of an application and is granted in certain circumstances when compelling reasons are present. Ordinarily a special handling fee is charged for special handling in addition to the regular fee for an application to register a copyright claim. Because of current delays in the processing of applications for registration occurring in the course of the Office’s implementation of its business process reengineering program, the Office has determined that the special handling fee shall not be assessed for conversion of a pending application to special handling status when the application has been pending for more than six months and the applicant has satisfied the Office that expedited handling of the registration is needed because the applicant is about to file a suit for copyright infringement.
This rule is effective August 10, 2009 through July 1, 2011.
David O. Carson, General Counsel, or Stephen Ruwe, Attorney–Advisor, Copyright GC/I&R, P.O. Box 70400, Washington, D.C. 20024–0400, Telephone (202) 707–8380. Telefax: (202) 707–8366.
Although the copyright law provides that a work of authorship obtains copyright protection from the moment it is fixed in a tangible medium of expression and that copyright registration is not a prerequisite for such protection, copyright registration nevertheless is required in order to obtain certain remedies for copyright infringement. Section 411 of the Copyright Act provides that, with certain exceptions, a suit for infringement of a United States work
Because the effective date of registration is “the day on which an application, deposit, and fee, which are later determined by the Register of Copyrights or by a court of competent jurisdiction to be acceptable for registration, have all been received in the Copyright Office,” 17 U.S.C. 410(d), a delay by the Copyright Office in its processing of an application for copyright registration will not adversely affect the ability of a copyright owner to
However, a delay in the issuance of a certificate of registration can create difficulties for a copyright owner of a United States work who wishes to file a suit for copyright infringement. The copyright owner will have to wait until the Office has either registered the copyright or refused to register the copyright; the copyright owner may not file suit the moment the application, fee and deposit have been submitted to the Copyright Office.
In recognition that copyright owners sometimes need to file suits for copyright infringement before they can reasonably expect the Office to issue (or refuse to issue) a certificate of registration, the Copyright Office has long offered a service called “Special Handling.” Special Handling provides expedited processing of an application for copyright registration.
Since 1982, the Copyright Office has charged a fee for special handling, in addition to the basic fee for an application for copyright registration. As the Office explained when it first imposed the Special Handling fee, “In the past the Copyright Office absorbed the additional costs of special handling but cannot continue to do so in the face of the rising number of such requests and the fiscal restraints under which it must operate. ... A claim that receives special handling must be processed outside of the normal work flow necessitating individual handling at each step and individual routing between work stations. A separate system of controls must be maintained for the special handling of claims to assure both that they move expeditiously through the necessary procedures and that they can be located quickly if the need should arise. Each of these activities involves more employee time than claims in the normal work flow since employees could otherwise be more efficiently occupied processing ordinary claims.” 47 FR at 19254.
As the Office has implemented its business process reengineering program, which has involved converting the registration system from the old, paper–based process to a new system of electronic processing and included a reorganization of the operations of the Office that has given new duties to copyright registration specialists, the pendency rates for applications for registration have risen to unacceptably high levels due to issues relating to the transition to the new system, especially with respect to paper applications. As a result, some applicants whose applications have been pending for several months may find that events occurring after an application was submitted require the applicant to seek expedited registration. In particular, an applicant may discover that a work that is the subject of a pending application has been infringed since the application was submitted. Because a suit for copyright infringement may not be instituted until after the work has been registered (or after registration has been refused), the applicant may need to convert the pending application to Special Handling.
Although the Office believes that as a general proposition, the imposition of an additional fee for Special Handling is fully justified, it is difficult to justify imposition of that fee for expedited registration of a claim when both (1) the applicant needs a certificate of registration in order to file an imminent suit for copyright infringement, and (2) the application has been pending longer than would ordinarily be reasonable to expect. We note that before the commencement of the delays caused by the conversion to the new registration processing system, 90%% of all registration claims were processed within 6 months. Currently, a similar percentage of claims that are submitted electronically are processed within 6 months, but it is taking up to 19 months to process 90%% of all claims submitted on paper applications. Only 5%% of claims submitted on paper applications are processed within 6 months.
Under the circumstances, the Office has concluded that it is appropriate to waive the fee for conversion of a pending application to Special Handling status in cases where (1) the applicant satisfies the Office that the applicant is about to file suit for infringement of the copyright in the work that is the subject of the application; and (2) the application has been pending for more than 6 months without any action by the Copyright Office. The first requirement is based on the recognition that a copyright owner simply cannot file a copyright infringement suit unless the Office has acted upon an application for registration. Because of this requirement, a copyright owner who has been waiting for longer than it would ordinarily take for a registration decision and who now needs to file a suit for copyright infringement should not have to pay an additional fee in order to “expedite” the registration.
The second requirement is based on the fact that prior to the inception of the current delays, almost all (90%%) applicants could expect to receive their certificates of registration within 6 months. Because an applicant could ordinarily expect to receive the certificate within that time frame, 6 months is an appropriate period of time after which persons meeting the first requirement should be relieved of the
In order to ensure that the Special Handling fee is waived only in cases where litigation is truly imminent and the need for Special Handling is therefore crucial, persons requesting conversion of their applications to Special Handling status with a waiver of the Special Handling fee must supply satisfactory proof that they are about to file a copyright infringement suit by submitting to the Copyright Office General Counsel (1) an affidavit or a declaration under penalty of perjury, signed by the applicant or by the applicant's attorney, identifying the work for which registration is pending and which is the subject of the request for Special Relief and providing basic information about the prospective litigation, including the identity of the defendant and the court in which suit will be filed, and (2) a draft of the complaint that will be filed once the certificate of registration has been issued. The purpose of these requirements is to ensure that waivers of the Special Handling fee are given only in cases where Special Handling is in fact needed in order to facilitate imminent litigation.
In order to facilitate identification of the pending claim that is the subject of the request, the request should include the exact title of the work as it appears on the application, as well as the name(s) of the author(s) and claimant(s), the date the application was submitted to the Copyright Office and the means (
This interim regulation will expire on July 1, 2011. The Office anticipates that by that date, processing time for applications will have returned to normal and that almost all claims (apart from those that require correspondence because of problems or questions pertaining to the application) will be processed within 6 months.
Copyright, General provisions.
17 U.S.C. 702.
(a) Special Handling is the expedited processing of an application for registration of a claim to copyright or for the recordation of a document pertaining to copyright. It is granted in cases where a compelling need for the service exists due to pending or prospective litigation, customs matters, or contract or publishing deadlines that necessitate the expedited issuance of a certificate of registration.
(b)
(c)
(d)
(1) Provides the following information relating to the application for registration:
(i) The exact title of the work for which registration is sought, as reflected on the application;
(ii) The name(s) of the author(s) of the work, as reflected on the application;
(iii) The name(s) of claimants, as reflected on the application;
(iv) The date the application was submitted to the Copyright Office;
(v) The means (
(vi) A description of the material deposited for registration, to assist in identifying the deposit;
(2) Includes a copy of the application that was submitted to the Copyright Office, or states that the applicant does not have access to a copy of the application;
(3) States that the applicant or a person acting with the authorization of the applicant is about to file suit for infringement of the copyright in a work that is the subject of the application;
(4) Identifies the defendant(s) and the court in which the suit will be filed; and
(5) Includes a copy of the complaint for copyright infringement that the applicant or a person acting with the authorization of the applicant intends to file in a United States District Court or the United States Court of Federal Claims. The copy of the complaint may omit allegations identifying the certificate of copyright registration, but must otherwise be complete.
(e)
(1)
(ii) If hand–delivered by a commercial courier, the materials shall be placed in an envelope or package, no larger than 12 inches by 18 inches by 4 inches, addressed to “Request for Waiver of Special Handling Fee, Office of the General Counsel, U.S. Copyright Office, LM 403, James Madison Building, Library of Congress, 101 Independence Avenue, SE, Washington, DC 20559” and delivered to the Congressional Courier Acceptance Site (“CCAS”), located at 2nd and D Streets, NE, Washington, DC between 8:30 a.m. and 4 p.m.
(2)