[Federal Register: April 13, 2001 (Volume 66, Number 72)]
[Rules and Regulations]
[Page 19094-19095]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 205
[Docket No. RM 2001-1]
Service of Notice of Institution of Action for Infringement and
Service of Complaint in Infringement Action on the Register of
Copyrights
AGENCY: Copyright Office, Library of Congress.
ACTION: Final rule.
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SUMMARY: This document publishes the procedures for proper service on
the Register of Copyrights when a registration applicant whose
application for registration has been refused institutes an
infringement action. Service under such circumstances is required under
title 17, United States Code, section 411(a).
EFFECTIVE DATE: Effective May 14, 2001.
FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Assistant
General Counsel, or Patricia L. Sinn, Senior Attorney, Copyright GC/
I&R, P.O. Box 70400, Southwest Station, Washington, D.C. 20024.
Telephone: (202) 707-8380. Telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION: Under title 17, United States Code, the
copyright law allows a copyright owner to sue for infringement of
exclusive rights provided under 17 U.S.C. 106, as long as the work(s)
at issue have been registered with the Copyright Office. In addition,
under section 411(a), a registration applicant whose application for
registration has been refused by the Office may institute an
infringement action under certain circumstances. It states:
Except for an action brought for a violation of the rights of
the author under section 106A(a), and subject to the provisions of
subsection (b), no action for infringement of the copyright in any
United States work shall be instituted until registration of the
copyright claim has been made in accordance with this title. In any
case, however, where the deposit, application, and fee required for
registration have been delivered to the Copyright Office in proper
form and registration has been refused, the applicant is entitled to
institute an action for infringement if notice thereof, with a copy
of the complaint, is served on the Register of Copyrights. The
Register may, at his or her option, become a party to the action
with respect to the issue of registrability of the copyright claim
by entering an appearance within sixty days after such service, but
the Register's failure to become a party shall not deprive the court
of jurisdiction to determine that case.
17 U.S.C. 411(a).
The purpose of the statutory provision is to enable the Register to
become a party to an action, if he or she chooses, with respect to the
issue of registrability of the copyright claim, and, thereby explain
the Office's rejection of an application or clarify the Office's
registration practices and procedures. The Register has sixty days
after service of complaint to intervene in the case. In order for this
to occur, service must be proper and timely.
Unfortunately, the statute does not give specific instructions
about service on the Register when registration has been refused, and
in practice such service has not been uniform. Despite the Copyright
Office's publication of an address where these complaints should be
directed, See 59 FR 17401 (April 12, 1994), they continue to be
misdirected. A number of them have been delivered to the wrong section
of the Copyright Office and held for over 60 days before being
forwarded to the appropriate Copyright Office official. Such delays
make it impossible for the Office to enter the case. Therefore, the
Office is publishing in its regulations the procedures whereby notice
of institution of lawsuits and complaints in cases where registration
has been refused must be served directly upon the appropriate officials
responsible for determining Office participation in such cases. Service
that does not comply with these procedures will not be considered
proper.
Service on the Register of notice that an action has been
instituted for infringement of a work for which registration has been
refused will be satisfied by either sending by first class mail notice
of the institution of the action in the form of a cover letter
addressed to the Register of Copyrights, along with a copy of the
complaint to the General Counsel of the Copyright Office at Copyright
GC/I&R, P.O. Box 70400, Southwest Station, Washington, D.C. 20024 or by
hand delivery of the same material to the General Counsel. If delivered
by hand, the cover letter and complaint must be delivered to the
Copyright Office General Counsel's Office at the James Madison Memorial
Building, Room LM-403, First and Independence Avenue, SE, Washington,
D.C. A copy of the cover letter and complaint should also be sent to
the Department of Justice by first class mail, addressed to the
Director of Intellectual Property Staff, Commercial Litigation Branch,
Civil Division, Department of Justice, Washington, D.C. 20530.
This final rule is being published without opportunity for notice
and comment because it is a rule of agency practice and procedure.
Moreover, the Office finds that there is good cause to conclude that
providing the opportunity for notice and comment would be
impracticable, unnecessary and contrary to the public interest because
this rule simply advises parties of the address to which the notice
required by section 411(a) must be sent. See 5 U.S.C. 553(b)(A) and
(B).
List of Subjects in 37 CFR Part 205
Copyright, Service of process.
Final Regulation
In consideration of the foregoing, the Copyright Office is amending
37 CFR Chapter II by adding part 205 consisting of subpart A to read as
follows:
PART 205--PRODUCTION OF LEGAL DOCUMENTS AND OFFICIAL TESTIMONY
Authority: 17 U.S.C. 411, 17 U.S.C. 702.
Sec. 205.1 Complaints served on the Register of Copyright pursuant to
17 U.S.C. 411(a)
When an action has been instituted pursuant to 17 U.S.C. 411(a) for
infringement of the copyright of a work for which registration has been
refused, notice of the institution of the action and a copy of the
complaint must be served on the Register of Copyrights by delivering
such documents by first class mail to the General Counsel of the
Copyright Office, GC/I&R, P.O. Box 70400, Southwest Station,
Washington, D.C. 20024, or delivery by hand to the General Counsel of
the Copyright Office, James Madison Memorial Building, Room LM-403,
First and Independence Avenue, SE, Washington, D.C. A second copy
should be delivered by first class mail to the United States Department
of Justice, directed to the Director of Intellectual Property Staff,
Commercial
[[Page 19095]]
Litigation Branch, Civil Division, Department of Justice, Washington,
D.C. 20530.
Dated: April 3, 2001.
Marybeth Peters,
Register of Copyrights.
James H. Billington,
Librarian of Congress.
[FR Doc. 01-9236 Filed 4-12-01; 8:45 am]
BILLING CODE 1410-30-P